<PAGE> 1
Registration No. 333- _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AKAMAI TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-3432319
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
500 TECHNOLOGY SQUARE 02139
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN OF INTERVU INC.
(Full Title of the Plan)
ROBERT O. BALL III
VICE PRESIDENT AND GENERAL COUNSEL
AKAMAI TECHNOLOGIES, INC.
500 TECHNOLOGY SQUARE
CAMBRIDGE, MA 02139
(Name and Address of Agent for Service)
(617) 250-3000
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 450,930 $9.49 $4,279,326(2) $1,129.74
value shares(1)
- ----------------------------------------------------------------------------------------
</TABLE>
(1) Based on 756,975 shares of INTERVU common stock subject to outstanding
options under the 1996 Stock Option Plan of INTERVU Inc.
(2) Estimated solely for the purpose of calculating the registration fee, and
based on the weighted average exercise price of the common stock in
accordance with Rule 457(h) under the Securities Act of 1933, as amended.
<PAGE> 2
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 1996 Stock Option Plan of INTERVU Inc.
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus
filed pursuant to Rule 424(b) under the Securities Act that
contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
document referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01 par
value per share (the "Common Stock"), contained in a registration
statement filed under the Exchange Act, including any amendment
or report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
<PAGE> 3
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of Incorporation (the
"Restated Certificate of Incorporation") provides that no director of the
Registrant shall be personally liable for any monetary damages for 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.
The Registrant's Restated Certificate of Incorporation provides that a
director or officer of the Registrant (a) shall be indemnified by the Registrant
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 the Registrant) brought
against him by virtue of his position as a director or officer of the Registrant
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 Registrant, 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 the Registrant against all expenses
(including attorneys' fees) and amounts paid in settlement incurred in
connection with any action by or in the right of the Registrant brought against
him by virtue of his position as a director or officer of the Registrant 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 Registrant, 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 the Registrant, unless and only to the extent that the
Court of Chancery of Delaware 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 the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, unless it is determined that he did not act in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the Registrant, and, with respect to any criminal action or
proceeding had reasonable cause to believe that his conduct was unlawful,
provided that he undertakes to repay the amount advanced if it is ultimately
determined that he is not entitled to indemnification for such expenses.
As a condition precedent to the right of indemnification, the director
or officer must give the Registrant notice of the action for which indemnity is
sought and the Registrant has the right to participate in such action or assume
the defense thereof.
The Registrant's Restated Certificate of Incorporation further provides
that the indemnification provided therein is not exclusive, and provides that
Registrant may enter into agreements with officers and directors providing for
indemnification rights and procedures different from those set forth in the
Registrant's Restated Certificate of Incorporation.
<PAGE> 4
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. UNDERTAKINGS
1. 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;
(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 the 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 rage 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 20 percent
change in the maximum offering price set
forth in the "Calculation of Registration
Fee" table in the effective Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement
<PAGE> 5
or any material change to such information
in the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
2. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act 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 and will be governed by the final
adjudication of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cambridge, Massachusetts on April 24, 2000.
AKAMAI TECHNOLOGIES, INC.
By: /s/ Robert O. Ball III
-----------------------------------
Robert O. Ball III
Vice President, General Counsel and
Secretary
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Akamai Technologies, Inc.
hereby severally constitute and appoint George H. Conrades, Paul Sagan and
Robert O. Ball III, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Akamai Technologies, Inc. to comply with all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
Signature Title Date
--------- ----- ----
/s/ George H. Conrades
- ------------------------- Chairman of the Board and Chief April 24, 2000
George H. Conrades Executive Officer (Principal
Executive Officer)
/s/ Timothy Weller
- ------------------------- Chief Financial Officer and April 24, 2000
Timothy Weller Treasurer (Principal Financial
Accounting Officer)
/s/ Arthur H. Bilger
- ------------------------- Director April 24, 2000
Arthur H. Bilger
/s/ Todd A. Dagres
- ------------------------- Director April 24, 2000
Todd A. Dagres
/s/ F. Thomson Leighton
- ------------------------- Director April 24, 2000
F. Thomson Leighton
/s/ Daniel M. Lewin
- ------------------------- Director April 24, 2000
Daniel M. Lewin
/s/ Terrance G. McGuire
- ------------------------- Director April 24, 2000
Terrance G. McGuire
/s/ Edward W. Scott
- ------------------------- Director April 24, 2000
Edward W. Scott
<PAGE> 7
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 (1) Certificate of Incorporation of the Registrant, as amended.
4.2 (1) By-Laws of the Registrant, as amended.
4.3 (1) Specimen Certificate for Common Stock of the Registrant.
4.4 1996 Stock Option Plan of INTERVU Inc.
5 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included in the signature pages of this
Registration Statement).
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-85679).
<PAGE> 1
EXHIBIT 4.4
FIRST AMENDMENT TO THE 1996 STOCK
OPTION PLAN OF INTERVU INC.
InterVU Inc., a Delaware corporation (the "Company"), by resolution of
its Board of Directors (the "Board"), adopted the 1996 Stock Option Plan of
InterVU Inc. (the "Plan") for the purpose of furthering the long-term stability
and financial success of the Company by retaining key employees, directors and
consultants who are able to contribute to the financial success of the Company.
In order to improve the Board's ability to interpret and administer the
Plan, and to clarify the Board's power to take actions under the Plan with
respect to Outside Directors which could not be taken by the Committee (as
defined in the Plan) consistent with Rule 16b-3, the Board has approved the
amendment set forth herein. On and after the date hereof, each reference in the
Plan to the "Plan" shall mean the Plan as amended hereby. Except as specifically
amended above, the Plan shall remain in full force and effect. This amendment,
together with the Plan, constitute the Plan in its entirety.
The following sentence shall be added to the end of Section 2.2 of the
Plan:
"The Board may at any time and from time to time exercise any and all
rights and duties of the Committee under the Plan except with respect
to matters which under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are required to be determined
in the sole discretion of the Committee."
Executed at San Diego, California this 5th day of April, 2000.
INTERVU INC.
By: /s/ Kenneth L. Ruggiero
------------------------------
Name: Kenneth L. Ruggiero
Title: Secretary
<PAGE> 2
1996 STOCK PLAN OF
INTERVU INC.
(Adopted Effective December 8, 1996)
TABLE OF CONTENTS
ARTICLE 1. INTRODUCTION ................................................... 1
ARTICLE 2. ADMINISTRATION ................................................. 1
2.1 Committee Composition ............................................. 1
2.2 Committee Responsibilities ........................................ 1
ARTICLE 3. SHARES AVAILABLE FOR GRANTS .................................... 2
3.1 Basic Limitation .................................................. 2
3.2 Additional Shares ................................................. 2
ARTICLE 4. ELIGIBILITY .................................................... 2
4.1 General Rules ..................................................... 2
4.2 Outside Directors ................................................. 2
4.3 Incentive Stock Options ........................................... 2
ARTICLE 5. OPTIONS ........................................................ 2
5.1 Stock Option Agreement ............................................ 2
5.2 Number of Shares .................................................. 3
5.3 Exercise Price .................................................... 3
5.4 Exercisability and Term ........................................... 3
5.5 Effect of Change in Control ....................................... 3
5.6 Modification or Assumption of Options ............................. 3
ARTICLE 6. PAYMENT FOR OPTION SHARES ...................................... 4
6.1 General Rule ...................................................... 4
6.2 Surrender of Stock ................................................ 4
6.3 Exercise/Sale ..................................................... 4
6.4 Exercise/Pledge ................................................... 4
6.5 Promissory Note ................................................... 4
6.6 Other Forms of Payment ............................................ 4
ARTICLE 7. RESTRICTED SHARES .............................................. 4
7.1 Time, Amount and Form of Awards ................................... 4
7.2 Payment for Awards ................................................ 5
7.3 Vesting Conditions ................................................ 5
ARTICLE 8. VOTING AND DIVIDEND RIGHTS ..................................... 5
ARTICLE 9. PROTECTION AGAINST DILUTION .................................... 5
9.1 Adjustments ....................................................... 5
9.2 Reorganizations ................................................... 6
ARTICLE 10. AWARDS UNDER OTHER PLANS ...................................... 6
ARTICLE 11. PAYMENT OF DIRECTOR'S FEES IN SECURITIES ...................... 6
11.1 Effective Date .................................................... 6
11.2 Elections to Receive NSOs or Restricted Shares .................... 6
11.3 Number and Terms of NSOs or Restricted Shares ..................... 6
ARTICLE 12. LIMITATION ON RIGHTS .......................................... 6
12.1 Retention Rights .................................................. 6
12.2 Stockholders' Rights .............................................. 6
12.3 Regulatory Requirements ........................................... 7
<PAGE> 3
ARTICLE 13. LIMITATION ON PAYMENTS ........................................ 7
13.1 Basic Rule ........................................................ 7
13.2 Reduction of Payments ............................................. 7
13.3 Overpayments and Underpayments .................................... 8
13.4 Related Corporations .............................................. 8
ARTICLE 14. WITHHOLDING TAXES ............................................. 8
14.1 General. .......................................................... 8
14.2 Share Withholding ................................................. 8
ARTICLE 15. ASSIGNMENT OR TRANSFER OF AWARDS .............................. 9
15.1 General ........................................................... 9
15.2 Trusts ............................................................ 9
ARTICLE 16. FUTURE OF THE PLAN ............................................ 9
16.1 Term of the Plan .................................................. 9
16.2 Amendment or Termination .......................................... 9
ARTICLE 17. DEFINITIONS ................................................... 10
ARTICLE 18. EXECUTION ..................................................... 12
<PAGE> 4
1996 STOCK PLAN OF
INTERVU INC.
ARTICLE 1. INTRODUCTION.
The Plan was adopted by the Board on December 8, 1996, subject to approval
by the Company's stockholders, and shall be effective as of such date.
The purpose of the Plan is to promote the long-term success of the Company
and the creation of stockholder value by (a) encouraging Key Employees to focus
on critical long-range objectives, (b) encouraging the attraction and retention
of Key Employees with exceptional qualifications and (c) linking Key Employees
directly to stockholder interests through increased stock ownership. The Plan
seeks to achieve this purpose by providing for Awards in the form of Restricted
Shares or options (which may constitute incentive stock options or nonstatutory
stock options).
The Plan shall be governed by, and construed in accordance with, the laws
of the State of California.
ARTICLE 2. ADMINISTRATION.
2.1 Committee Composition. The Plan shall be administered by the
Committee. The Committee shall be appointed by the Board. In addition, the
composition of the Committee shall satisfy:
(a) Such requirements, if any, as the Securities and Exchange Commission
may establish for administrators acting under plans intended to qualify for
exemption under Rule 16b-3 (or its successor) under the Exchange Act; and
(b) Such requirements as the Internal Revenue Service may establish for
outside directors acting under plans intended to qualify for exemption under
section 162(m)(4)(C) of the Code.
The Board may also appoint one or more separate committees, each composed of one
or more officers of the Company who need not satisfy the foregoing requirements,
who may administer the Plan with respect to Key Employees who are not "covered
employees" under section 162(m)(3) of the Code.
2.2 Committee Responsibilities. The Committee shall (a) select the Key
Employees who are to receive Awards under the Plan, (b) determine the type,
number, vesting requirements and other features and conditions of such Awards,
(c) interpret the Plan and (d) make all other decisions relating to the
operation of the Plan. The Committee may adopt such rules or guidelines as it
deems appropriate to implement the Plan. The Committee's determinations under
the Plan shall be final and binding on all persons.
<PAGE> 5
ARTICLE 3. SHARES AVAILABLE FOR GRANTS.
3.1 Basic Limitation. Common Shares issued pursuant to the Plan may be
authorized but unissued shares or treasury shares. The aggregate number of
Common Shares available for Restricted Shares and Options awarded under the Plan
shall not exceed 500,000. Of the Common Shares available hereunder, no more than
20% in aggregate shall be available with respect to Outside Directors. The
limitation of this Section 3.1 shall be subject to adjustment pursuant to
Article 9.
3.2 Additional Shares. If Options are forfeited or if Options terminate
for any other reason before being exercised, then the corresponding Common
Shares shall again become available for Awards under the Plan. If Restricted
Shares are forfeited before any dividends have been paid with respect to such
Shares, then such Shares shall again become available for Awards under the Plan.
ARTICLE 4. ELIGIBILITY.
4.1 General Rules. Only Key Employees (including, without limitation,
independent contractors who are not members of the Board) shall be eligible for
designation as Participants by the Committee.
4.2 Outside Directors. The Committee may provide that the NSOs that
otherwise would be granted to an Outside Director under this Plan shall instead
be granted to an affiliate of such Outside Director. Such affiliate shall then
be deemed to be an Outside Director for purposes of the Plan, provided that the
service-related vesting and termination provisions pertaining to the NSOs shall
be applied with regard to the service of the Outside Director.
4.3 Incentive Stock Options. Only Key Employees who are common-law
employees of the Company, a Parent or a Subsidiary shall be eligible for the
grant of ISOs. In addition, a Key Employee who owns more than 10% of the total
combined voting power of all classes of outstanding stock of the Company or any
of its Parents or Subsidiaries shall not be eligible for the grant of an ISO
unless the requirements set forth in section 422(c)(6) of the Code are
satisfied.
<PAGE> 6
ARTICLE 5. OPTIONS.
5.1 Stock Option Agreement. Each grant of an Option under the Plan shall
be evidenced by a Stock Option Agreement between the Optionee and the Company.
Such Option shall be subject to all applicable terms of the Plan and may be
subject to any other terms that are not inconsistent with the Plan. The Stock
Option Agreement shall specify whether the Option is an ISO or an NSO. The
provisions of the various Stock Option Agreements entered into under the Plan
need not be identical. Options may be granted in consideration of a cash payment
or in consideration of a reduction in the Optionee's other compensation. A Stock
Option Agreement may provide that a new Option will be granted automatically to
the Optionee when he or she exercises a prior Option and pays the Exercise Price
in the form described in Section 6.2.
5.2 Number of Shares. Each Stock Option Agreement shall specify the
number of Common Shares subject to the Option and shall provide for the
adjustment of such number in accordance with Article 9. Options granted to any
Optionee in a single calendar year shall in no event cover more than 100,000
Common Shares, subject to adjustment in accordance with Article 9.
5.3 Exercise Price. Each Stock Option Agreement shall specify the
Exercise Price; provided that the Exercise Price under an ISO shall in no event
be less than 100% of the Fair Market Value of a Common Share on the date of
grant and the Exercise Price under an NSO shall in no event be less than the par
value of the Common Shares subject to such NSO. In the case of an NSO, a Stock
Option Agreement may specify an Exercise Price that varies in accordance with a
predetermined formula while the NSO is outstanding.
5.4 Exercisability and Term. Each Stock Option Agreement shall specify
the date when all or any installment of the option is to become exercisable. The
Stock Option Agreement shall also specify the term of the Option; provided that
the term of an ISO shall in no event exceed 10 years from the date of grant. A
Stock Option Agreement may provide for accelerated exercisability in the event
of the Optionee's death, disability or retirement or other events and may
provide for expiration prior to the end of its term in the event of the
termination of the Optionee's service. NSOs may also be awarded in combination
with Restricted Shares, and such an Award may provide that the NSOs will not be
exercisable unless the related Restricted Shares are forfeited.
5.5 Effect of Change in Control. The Committee may determine, at the
time of granting an Option or thereafter, that such option shall become fully
exercisable as to all Common Shares subject to such option in the event that a
Change in Control occurs with respect to the Company.
5.6 Modification or Assumption of Options. Within the limitations of the
Plan, the committee may modify, extend or
<PAGE> 7
assume outstanding options or may accept the cancellation of outstanding options
(whether granted by the Company or by another issuer) in return for the grant of
new options for the same or a different number of shares and at the same or a
different exercise price. The foregoing notwithstanding, no modification of an
option shall, without the consent of the Optionee, alter or impair his or her
rights or obligations under such Option.
ARTICLE 6. PAYMENT FOR OPTION SHARES.
6.1 General Rule. The entire Exercise Price of Common Shares issued upon
exercise of Options shall be payable in cash at the time when such Common Shares
are purchased, except as follows:
(a) In the case of an ISO granted under the Plan, payment shall be made
only pursuant to the express provisions of the applicable Stock Option
Agreement. The Stock Option Agreement may specify that payment may be made in
any form(s) described in this Article 6.
(b) In the case of an NSO, the Committee may at any time accept payment
in any form(s) described in this Article 6.
6.2 Surrender of Stock. To the extent that this Section 6.2 is
applicable, payment for all or any part of the Exercise Price may be made with
Common Shares to the extent permitted under applicable law. Such Common Shares
shall be valued at their Fair Market Value on the date when the new Common
Shares are purchased under the Plan.
6.3 Exercise/Sale. To the extent that this Section 6.3 is applicable,
payment may be made by the delivery (on a form prescribed by the Company) of an
irrevocable direction to a securities broker approved by the Company to sell
Common Shares and to deliver all or part of the sales proceeds to the Company in
payment of all or part of the Exercise Price and any withholding taxes.
6.4 Exercise/Pledge. To the extent that this Section 6.4 is applicable,
payment may be made by the delivery (on a form prescribed by the Company) of an
irrevocable direction to pledge Common Shares to a securities broker or lender
approved by the Company, as security for a loan, and to deliver all or part of
the loan proceeds to the Company in payment of all or part of the Exercise Price
and any withholding taxes.
6.5 Promissory Note. To the extent that this Section 6.5 is applicable,
payment may be made with a full-recourse promissory note; provided that the par
value of the Common Shares shall be paid in cash.
6.6 Other Forms of Payment. To the extent that this Section 6.6 is
applicable, payment may be made in any other form that is consistent with
applicable laws, regulations and rules.
<PAGE> 8
ARTICLE 7. RESTRICTED SHARES.
7.1 Time, Amount and Form of Awards. Awards under the Plan may be
granted in the form of Restricted Shares. Restricted Shares may also be awarded
in combination with NSOs and such an Award may provide that the Restricted
Shares will be forfeited in the event that the related NSOs are exercised.
7.2 Payment for Awards. To the extent that an Award is granted in the
form of newly issued Restricted Shares, the Award recipient, as a condition to
the grant of such Award, shall be required to pay the Company in cash an amount
at least equal to the par value of such Restricted Shares. To the extent that an
Award is granted in the form of Restricted Shares from the Company's treasury,
no cash consideration shall be required of the Award recipients unless otherwise
provided in the applicable Stock Award Agreement.
7.3 Vesting Conditions. Each Award of Restricted Shares shall become
vested, in full or in installments, upon satisfaction of the conditions
specified in the Stock Award Agreement. A Stock Award Agreement may provide for
accelerated vesting in the event of the Participant's death, disability or
retirement or other events. The Committee may determine, at the time of making
an Award or thereafter, that such Award shall become fully vested in the event
that a Change in Control occurs with respect to the Company.
ARTICLE 8. VOTING AND DIVIDEND RIGHTS.
The holders of Restricted Shares awarded under the Plan shall have the
same voting, dividend and other rights as the Company's other holders of Common
Stock. A Stock Award Agreement, however, may require that the holders of
Restricted Shares invest any cash dividends received in additional Restricted
Shares. Such additional Restricted Shares shall be subject to the same
conditions and restrictions as the Award with respect to which the dividends
were paid. Such additional Restricted Shares shall not reduce the number of
Common Shares available under Article 3.
<PAGE> 9
ARTICLE 9. PROTECTION AGAINST DILUTION.
9.1 Adjustments. In the event of a subdivision of the outstanding Common
Shares, a declaration of a dividend payable in Common Shares, a declaration of a
dividend payable in a form other than Common Shares in an amount that has a
material effect on the price of Common Shares, a combination or consolidation of
the outstanding Common Shares (by reclassification or otherwise) into a lesser
number of Common Shares, a recapitalization, a spinoff or a similar occurrence,
the Committee shall make such adjustments as it, in its sole discretion, deems
appropriate in one or more of (a) the number of Options and Restricted Shares
available for future Awards under Article 3, (b) the limitations set forth in
Section 0, (c) the number of NSOs to be granted to Outside Directors under
Section 4.2, (d) the number of Common Shares covered by each outstanding Option,
or (e) the Exercise Price under each outstanding Option. Except as provided in
this Article 9, a Participant shall have no rights by reason of any issue by the
Company of stock of any class or securities convertible into stock of any class,
any subdivision or consolidation of shares of stock of any class, the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class.
9.2 Reorganizations. In the event that the Company is a party to a
merger or other reorganization, outstanding Options and Restricted Shares shall
be subject to the agreement of merger or reorganization. Such agreement may
provide, without limitation, for the assumption of outstanding Awards by the
surviving corporation or its parent, for their continuation by the Company (if
the Company is a surviving corporation), for accelerated vesting and accelerated
expiration, or for settlement in cash.
ARTICLE 10. AWARDS UNDER OTHER PLANS.
The Company may grant awards under other plans or programs. Such awards
may be settled in the form of Common Shares issued under this Plan.
ARTICLE 11. PAYMENT OF DIRECTOR'S FEES IN SECURITIES.
11.1 Effective Date. No provision of this Article 11 shall be effective
unless and until the Board has determined to implement such provision.
11.2 Elections to Receive NSOs or Restricted Shares. An outside Director
may elect to receive his or her annual retainer payments and meeting fees, if
any, from the Company in the form of cash, NSOs or Restricted Shares or a
combination thereof, as determined by the Board. Such NSOs and Restricted Shares
shall be issued under the Plan. An election under this Article 0 shall be filed
with the Company on the prescribed form.
11.3 Number and Terms of NSOs or Restricted Shares. The number of NSOs or
Restricted Shares to be granted to Outside
<PAGE> 10
Directors in lieu of annual retainers and meeting fees, if any, that would
otherwise be paid in cash shall be calculated in a manner determined by the
Board. The terms of such NSOs or Restricted Shares shall also be determined by
the Board.
ARTICLE 12. LIMITATION ON RIGHTS.
12.1 Retention Rights. Neither the Plan nor any Award granted under the
Plan shall be deemed to give any individual a right to remain an employee,
consultant, advisor or director of the Company, a Parent or a Subsidiary. The
Company and its Parents and Subsidiaries reserve the right to terminate the
service of any employee, consultant, advisor or director at any time, with or
without cause, subject to applicable laws, the Company's certificate of
incorporation and by-laws and a written employment, consulting or other
applicable agreement (if any).
12.2 Stockholders' Rights. A Participant shall have no dividend rights,
voting rights or other rights as a stockholder with respect to any Common Shares
covered by his or her Award prior to the issuance of a stock certificate for
such Common Shares. No adjustment shall be made for cash dividends or other
rights for which the record date is prior to the date when such certificate is
issued, except as expressly provided in Articles 7, 8 and 9.
12.3 Regulatory Requirements. Any other provision of the Plan
notwithstanding, the obligation of the Company to issue Common Shares under the
Plan shall be subject to all applicable laws, rules and regulations and such
approval by any regulatory body as may be required. The Company reserves the
right to restrict, in whole or in part, the delivery of Common Shares pursuant
to any Award prior to the satisfaction of all legal requirements relating to the
issuance of such Common Shares, to their registration, qualification or listing
or to an exemption from registration, qualification or listing.
ARTICLE 13. LIMITATION ON PAYMENTS.
13.1 Basic Rule. Any provision of the Plan to the contrary
notwithstanding, in the event that the independent auditors most recently
selected by the Board (the "Auditors") determine that any payment or transfer by
the Company under the Plan to or for the benefit of a Participant (a "Payment")
would be nondeductible by the Company for federal income tax purposes because of
the provisions concerning "excess parachute payments" in section 280G of the
Code, then the aggregate present value of all Payments shall be reduced (but not
below zero) to the Reduced Amount; provided that the Committee, at the time of
making an Award under this Plan or at any time thereafter, may specify in
writing that such Award shall not be so reduced and shall not be subject to this
Article 0. For purposes of this Article 0, the "Reduced Amount" shall be the
amount, expressed as a present value, which maximizes the aggregate present
value of the Payments without causing any Payment to be nondeductible by the
Company because of section 280G of the Code.
<PAGE> 11
13.2 Reduction of Payments. If the Auditors determine that any Payment
would be nondeductible by the Company because of section 280G of the Code, then
the Company shall promptly give the Participant notice to that effect and a copy
of the detailed calculation thereof and of the Reduced Amount, and the
Participant may then elect, in his or her sole discretion, which and how much of
the Payments shall be eliminated or reduced (as long as after such election the
aggregate present value of the Payments equals the Reduced Amount) and shall
advise the Company in writing of his or her election within 10 days of receipt
of notice. If no such election is made by the Participant within such 10-day
period, then the Company may elect which and how much of the Payments shall be
eliminated or reduced (as long as after such election the aggregate present
value of the Payments equals the Reduced Amount) and shall notify the
Participant promptly of such election. For purposes of this Article 0, present
value shall be determined in accordance with section 280G(d)(4) of the Code. All
determinations made by the Auditors under this Article 0 shall be binding upon
the Company and the Participant and shall be made within 60 days of the date
when a Payment becomes payable or transferable. As promptly as practicable
following such determination and the elections hereunder, the Company shall pay
or transfer to or for the benefit of the Participant such amounts as are then
due to him or her under the Plan and shall promptly pay or transfer to or for
the benefit of the Participant in the future such amounts as become due to him
or her under the Plan.
13.3 Overpayments and Underpayments. As a result of uncertainty in the
application of section 280G of the Code at the time of an initial determination
by the Auditors hereunder, it is possible that Payments will have been made by
the Company which should not have been made (an "Overpayment") or that
additional Payments which will not have been made by the Company could have been
made (an "Underpayment"), consistent in each case with the calculation of the
Reduced Amount hereunder. In the event that the Auditors, based upon the
assertion of a deficiency by the Internal Revenue Service against the Company or
the Participant which the Auditors believe has a high probability of success,
determine that an Overpayment has been made, such Overpayment shall be treated
for all purposes as a loan to the Participant which he or she shall repay to the
Company, together with interest at the applicable federal rate provided in
section 7872(f)(2) of the Code; provided, however, that no amount shall be
payable by the Participant to the Company if and to the extent that such payment
would not reduce the amount which is subject to taxation under section 4999 of
the Code. In the event that the Auditors determine that an Underpayment has
occurred, such Underpayment shall promptly be paid or transferred by the Company
to or for the benefit of the Participant, together with interest at the
applicable federal rate provided in section 7872(f)(2) of the Code.
13.4 Related Corporations. For purposes of this Article 0, the term
"Company" shall include affiliated
<PAGE> 12
corporations to the extent determined by the Auditors in accordance with section
280G(d)(5) of the Code.
ARTICLE 14. WITHHOLDING TAXES.
14.1 General. To the extent required by applicable federal, state, local
or foreign law, a Participant or his or her successor shall make arrangements
satisfactory to the Company for the satisfaction of any withholding tax
obligations that arise in connection with the Plan. The Company shall not be
required to issue any Common Shares or make any cash payment under the Plan
until such obligations are satisfied.
14.2 Share Withholding. The Committee may permit a Participant to satisfy
all or part of his or her withholding or income tax obligations by having the
Company withhold all or a portion of any Common Shares that otherwise would be
issued to him or her or by surrendering all or a portion of any Common Shares
that he or she previously acquired. Such Common Shares shall be valued at their
Fair Market Value on the date when taxes otherwise would be withheld in cash.
Any payment of taxes by assigning Common Shares to the Company may be subject to
restrictions, including any restrictions required by rules of the Securities and
Exchange Commission.
ARTICLE 15. ASSIGNMENT OR TRANSFER OF AWARDS.
15.1 General. An Award granted under the Plan shall not be anticipated,
assigned, attached, garnished, optioned, transferred or made subject to any
creditor's process, whether voluntarily, involuntarily or by operation of law,
except as approved by the Committee. Notwithstanding the foregoing, ISOs may not
be transferable. However, this Article 0 shall not preclude a Participant from
designating a beneficiary who will receive any outstanding Awards in the event
of the Participant's death, nor shall it preclude a transfer of Awards by will
or by the laws of descent and distribution.
15.2 Trusts. Neither this Article 0 nor any other provision of the Plan
shall preclude a Participant from transferring or assigning Restricted Shares to
(a) the trustee of a trust that is revocable by such Participant alone, both at
the time of the transfer or assignment and at all times thereafter prior to such
Participant's death, or (b) the trustee of any other trust to the extent
approved in advance by the Committee in writing. A transfer or assignment of
Restricted Shares from such trustee to any person other than such Participant
shall be permitted only to the extent approved in advance by the Committee in
writing, and Restricted Shares held by such trustee shall be subject to all of
the conditions and restrictions set forth in the Plan and in the applicable
Stock Award Agreement, as if such trustee were a party to such Agreement.
<PAGE> 13
ARTICLE 16. FUTURE OF THE PLAN.
16.1 Term of the Plan. The Plan, as set forth herein, was adopted on
December 8, 1996, and shall become effective as of such date. The Plan shall
remain in effect until it is terminated under Section 0, except that no ISOs
shall be granted after December 7, 2006.
16.2 Amendment or Termination. The Board may, at any time and for any
reason, amend or terminate the Plan. An amendment of the Plan shall be subject
to the approval of the Company's stockholders only to the extent required by
applicable laws, regulations or rules. No Awards shall be granted under the Plan
after the termination thereof. The termination of the Plan, or any amendment
thereof, shall not affect any Award previously granted under the Plan.
ARTICLE 17. DEFINITIONS.
17.1 "Award" means any award of an Option or a Restricted Share under the
Plan.
17.2 "Board" means the Company's Board of Directors, as constituted from
time to time.
17.3 "Change in Control" shall be determined by the Committee. The term
"Change in Control" shall not include a transaction, the sole purpose of which
is to change the state of the Company's incorporation.
17.4 "Code" means the Internal Revenue Code of 1986, as amended.
17.5 "Committee", means a committee of the Board, as described in
Article 2.
17.6 "Common Share" means one share of the common stock of the Company.
17.7 "Company" means InterVU Inc., a Delaware corporation.
17.8 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
17.9 "Exercise Price," in the case of an Option, means the amount for
which one Common Share may be purchased upon exercise of such Option, as
specified in the applicable Stock Option Agreement.
17.10 "Fair Market Value" means the market price of Common Shares,
determined by the Committee as follows;
(a) If the Common Shares were traded over-the-counter on the date in
question but was not traded on the Nasdaq system or the Nasdaq National Market
System, then the Fair Market Value shall be equal to the mean between the last
reported repre-
<PAGE> 14
sentative bid and asked prices quoted for such date by the principal automated
inter-dealer quotation system on which the Common Shares are quoted or, if the
Common Shares are not quoted on any such system, by the "Pink Sheets" published
by the National Quotation Bureau, Inc.;
(b) If the Common Shares were traded over-the-counter on the date in
question and were traded on the Nasdaq system or the Nasdaq National Market
System, then the Fair Market Value shall be equal to the last transaction price
quoted for such date by the Nasdaq system or the Nasdaq National Market System;
(c) If the Common Shares were traded on a stock exchange on the date in
question, then the Fair Market value shall be equal to the closing price
reported by the applicable composite transactions report for such date; and
(d) If none of the foregoing provisions is applicable, then the Fair
Market value shall be determined by the Committee in good faith on such basis as
it deems appropriate.
Whenever possible, the determination of Fair Market Value by the Committee shall
be based on the prices reported in the Western Edition of The Wall Street
Journal. Such determination shall be conclusive and binding on all persons.
17.11 "ISO" means an incentive stock option described in section 422(b) of
the Code.
17.12 "Key Employee" means (a) a common law employee of the Company, a
Parent or a Subsidiary, (b) an Outside Director and (c) a consultant or adviser
who provides services to the Company, a Parent or a Subsidiary as an independent
contractor. Service as an Outside Director or as an independent contractor shall
be considered employment for all purposes of the Plan, except as provided in
Sections 4.2 and 4.3.
17.13 "NSO" means a stock option not described in sections 422 or 423 of
the Code.
17.14 "Option" means an ISO or NSO granted under the Plan and entitling
the holder to purchase one Common Share.
17.15 "Optionee" means an individual or estate who holds an Option.
17.16 "Outside Director" shall mean a member of the Board who is not a
common-law employee of the Company, a Parent or a Subsidiary.
17.17 "Parent" means any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain. A corporation that attains the status of a Parent on
a
<PAGE> 15
date after the adoption of the Plan shall be considered a Parent commencing as
of such date.
17.18 "Participant" means an individual or estate who holds an Award.
17.19 "Plan" means this 1996 Stock Plan of InterVU Inc., as amended from
time to time.
17.20 Restricted Share" means a Common Share awarded under the Plan.
17.21 "Stock Award Agreement" means the agreement between the Company and
the recipient of a Restricted Share which contains the terms, conditions and
restrictions pertaining to such Restricted Share.
17.22 "Stock Option Agreement" means the agreement between the Company and
an Optionee which contains the terms, conditions and restrictions pertaining to
his or her Option.
17.23 "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain. A corporation that attains
the status of a Subsidiary on a date after the adoption of the Plan shall be
considered a Subsidiary commencing as of such date.
ARTICLE 18. EXECUTION.
To record the adoption of the Plan by the Board, the Company has caused
its duly authorized officer to affix the corporate name and seal hereto.
INTERVU INC.
By /s/ Kenneth L. Ruggiero
-------------------------------
<PAGE> 1
EXHIBIT 5
HALE AND DORR LLP
COUNSELLORS AT LAW
WWW.HALEDORR.COM
60 STATE STREET * BOSTON, MA 02109
617-526-6000 * FAX 617-526-5000
April 24, 2000
Akamai Technologies, Inc.
500 Technology Square
Cambridge, MA 02139
Re: 1996 Stock Option Plan of INTERVU Inc.
-------------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to an aggregate of 450,930 shares of Common Stock, $.01 par value per
share (the "Shares"), of Akamai Technologies, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Stock Option Plan of INTERVU Inc.
(the "Plan"). The Plan was assumed pursuant to the Agreement and
Plan of Merger, dated as of February 6, 2000, by and among the Company, Alii
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of the
Company, and INTERVU Inc., a Delaware corporation.
We have examined the Certificate of Incorporation and By-Laws of the
Company, each as amended and restated to date and originals, or copies certified
to our satisfaction, of all pertinent records of the meetings of the directors
and stockholders of the Company, the Registration Statement and such other
documents relating to the Company as we have deemed material for the purposes of
this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares in accordance with the Plan, to register and qualify the
Shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation Law statute and the federal laws of the United
States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized for issuance and, when the Shares are issued
and paid for in accordance with the terms and conditions of the Plan, the Shares
will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
<PAGE> 2
Akamai Technologies, Inc.
April 24, 2000
Page 2
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our reports dated January 25, 2000, except
for Note 14, as to which the date is February 28, 2000, relating to the
consolidated financial statements and financial statement schedule, which appear
in the Annual Report on Form 10-K of Akamai Technologies, Inc. for the year
ended December 31, 1999.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
April 24, 2000
