<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, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices) (Zip Code)
SECOND AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
(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 9,000,000 $65.09(1) $585,810,000(1) $154,653.84
par value shares
</TABLE>
- -------------
(1) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, based upon the average of the high and low prices of the
Common Stock on May 24, 2000.
<PAGE> 2
STATEMENT OF INCORPORATION BY REFERENCE
Except as otherwise set forth below, this Registration Statement on Form
S-8 incorporates by reference the contents of the Registration Statement on Form
S-8, File No. 333-89887, relating to the Registrant's Second Amended and
Restated 1998 Stock Incentive Plan.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all
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 May 25, 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 amendment 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 May 25, 2000
George H. Conrades Executive Officer (Principal
Executive Officer)
/s/ Timothy Weller
- ------------------------ Chief Financial Officer and May 25, 2000
Timothy Weller Treasurer (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Arthur H. Bilger
- ------------------------ Director May 25, 2000
Arthur H. Bilger
/s/ Todd A. Dagres
- ------------------------ Director May 25, 2000
Todd A. Dagres
/s/ F. Thomson Leighton
- ------------------------ Director May 25, 2000
F. Thomson Leighton
- ------------------------ Director May --, 2000
Daniel M. Lewin
/s/ Terrance G. McGuire
- ------------------------ Director May 25, 2000
Terrance G. McGuire
- ------------------------ Director May --, 2000
Edward W. Scott
<PAGE> 4
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 of Common Stock of the Registrant.
4.4 Second Amended and Restated 1998 Stock Incentive Plan.
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
AMENDMENT TO
SECOND AMENDED AND RESTATED 1998 STOCK INCENTIVE PLAN
OF
AKAMAI TECHNOLOGIES, INC.
The Second Amended and Restated 1998 Stock Incentive Plan (the "Plan")
be and hereby is amended by deleting the first sentence of Section 4(a) thereof
in its entirety and inserting in lieu thereof the following:
"Subject to adjustment under Section 8, Awards may be made under the
Plan for up to 37,755,600 shares of common stock, $.01 par value per share, of
the Company (the "Common Stock")."
Adopted by the Board of Directors on April 9, 2000.
Approved by the Stockholders on May 24, 2000.
1
<PAGE> 2
AKAMAI TECHNOLOGIES, INC.
Second Amended and Restated
1998 STOCK INCENTIVE PLAN
1. PURPOSE
The purpose of this Amended and Restated 1998 Stock Incentive Plan (the "Plan")
of Akamai Technologies, Inc., a Delaware corporation (the "Company"), is to
advance the interests of the Company's stockholders by enhancing the Company's
ability to attract, retain and motivate persons who make (or are expected to
make) important contributions to the Company by providing such persons with
equity ownership opportunities and performance-based incentives and thereby
better aligning the interests of such persons with those of the Company's
stockholders. Except where the context otherwise requires, the term "Company"
shall include any of the Company's present or future subsidiary corporations of
as defined in Section 424(f) of the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder (the "Code").
2. ELIGIBILITY
All of the Company's employees, officers, directors, consultants and advisors
(and any individuals who have accepted an offer for employment) are eligible to
be granted options, restricted stock awards, or other stock-based awards (each,
an "Award") under the Plan. Each person who has been granted an Award under the
Plan shall be deemed a "Participant".
3. ADMINISTRATION, DELEGATION
(a) Administration by Board of Directors. The Plan will be administered
by the Board of Directors of the Company (the "Board"). The Board shall have
authority to grant Awards and to adopt, amend and repeal such administrative
rules, guidelines and practices relating to the Plan as it shall deem advisable.
The Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the extent it shall
deem expedient to carry the Plan into effect and it shall be the sole and final
judge of such expediency. All decisions by the Board shall be made in the
Board's sole discretion and shall be final and binding on all persons having or
claiming any interest in the Plan or in any Award. No director or person acting
pursuant to the authority delegated by the Board shall be liable for any action
or determination relating to or under the Plan made in good faith.
(b) DELEGATION TO EXECUTIVE OFFICERS. To the extent permitted by
applicable law, the Board may delegate to one or more executive officers of the
Company the power to make Awards and exercise such other powers under the Plan
as the Board may determine, provided that the Board shall fix the maximum number
of shares subject to Awards and the maximum number of shares for any one
Participant to be made by such executive officers.
(c) APPOINTMENT OF COMMITTEES. To the extent permitted by applicable
law, the Board may delegate any or all of its powers under the Plan to one or
more committees or subcommittees of the Board (a "Committee"). All references in
the Plan to the "Board" shall mean the Board or a Committee of the Board or the
executive officer referred to in Section 3(b)
2
<PAGE> 3
to the extent that the Board's powers or authority under the Plan have been
delegated to such Committee or executive officer.
4. STOCK AVAILABLE FOR AWARDS
(a) NUMBER OF SHARES. Subject to adjustment under Section 8, Awards may
be made under the Plan for up to 11,377,800 shares of common stock, $0.01 par
value per share, of the Company (the "Common Stock"). If any Award expires or is
terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part or results in any Common Stock not being issued,
the unused Common Stock covered by such Award shall again be available for the
grant of Awards under the Plan, subject, however, in the case of Incentive Stock
Options (as hereinafter defined), to any limitation required under the Code.
Shares issued under the Plan may consist in whole or in part of authorized but
unissued shares or treasury shares.
(b) PER-PARTICIPANT LIMIT. Subject to adjustment under Section 8, for
Awards granted after the Common Stock is registered under the Securities
Exchange Act of 1934 (the "Exchange Act"), the maximum number of shares of
Common Stock with respect to which an Award may be granted to any Participant
under the Plan shall be 3,600,000 per calendar year. The per-Participant limit
described in this Section 4(b) shall be construed and applied consistently with
Section 162(m) of the Code.
5. STOCK OPTIONS
(a) GENERAL. The Board may grant options to purchase Common Stock
(each, an "Option") and determine the number of shares of Common Stock to be
covered by each Option, the exercise price of each Option and the conditions and
limitations applicable to the exercise of each Option, including conditions
relating to applicable federal or state securities laws, as it considers
necessary or advisable. An Option which is not intended to be an Incentive Stock
Option (as hereinafter defined) shall be designated a "Nonstatutory Stock
Option".
(b) INCENTIVE STOCK OPTIONS. An Option that the Board intends to be an
"incentive stock option" as defined in Section 422 of the Code (an "Incentive
Stock Option") shall only be granted to employees of the Company and shall be
subject to and shall be construed consistently with the requirements of Section
422 of the Code. The Company shall have no liability to a Participant, or any
other party, if an Option (or any part thereof) which is intended to be an
Incentive Stock Option is not an Incentive Stock Option.
(c) EXERCISE PRICE. The Board shall establish the exercise price at the
time each Option is granted and specify it in the applicable option agreement.
(d) DURATION OF OPTIONS. Each Option shall be exercisable at such times
and subject to such terms and conditions as the Board may specify in the
applicable option agreement.
(e) EXERCISE OF OPTION. Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for the number of
shares for which the Option is exercised.
3
<PAGE> 4
(f) PAYMENT UPON EXERCISE. Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:
(1) in cash or by check, payable to the order of the Company;
(2) except as the Board may, in its sole discretion, otherwise
provide in an option agreement, by (i) delivery of an irrevocable and
unconditional undertaking by a creditworthy broker to deliver promptly
to the Company sufficient funds to pay the exercise price or (ii)
delivery by the Participant to the Company of a copy of irrevocable and
unconditional instructions to a creditworthy broker to deliver promptly
to the Company cash or a check sufficient to pay the exercise price;
(3) when the Common Stock is registered under the Exchange
Act, by delivery of shares of Common Stock owned by the Participant
valued at their fair market value as determined by (or in a manner
approved by) the Board in good faith ("Fair Market Value"), which
Common Stock was owned by the Participant at least six months prior to
such delivery;
(4) to the extent permitted by the Board, in its sole
discretion by (i) delivery of a promissory note of the Participant to
the Company on terms determined by the Board, or (ii) payment of such
other lawful consideration as the Board may determine; or
(5) by any combination of the above permitted forms of
payment.
6. RESTRICTED STOCK
(a) Grants. The Board may grant Awards entitling recipients to acquire
shares of Common Stock, subject to the right of the Company to repurchase all or
part of such shares at their issue price or other stated or formula price (or to
require forfeiture of such shares if issued at no cost) from the recipient in
the event that conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or periods
established by the Board for such Award (each, a "Restricted Stock Award").
(b) TERMS AND CONDITIONS. The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. Any stock certificates
issued in respect of a Restricted Stock Award shall be registered in the name of
the Participant and, unless otherwise determined by the Board, deposited by the
Participant, together with a stock power endorsed in blank, with the Company (or
its designee). At the expiration of the applicable restriction periods, the
Company (or such designee) shall deliver the certificates no longer subject to
such restrictions to the Participant or if the Participant has died, to the
beneficiary designated, in a manner determined by the Board, by a Participant to
receive amounts due or exercise rights of the Participant in the event of the
Participant's death (the "Designated Beneficiary"). In the absence of an
effective designation by a Participant, Designated Beneficiary shall mean the
Participant's estate.
4
<PAGE> 5
7. OTHER STOCK-BASED AWARDS
The Board shall have the right to grant other Awards based upon the Common Stock
having such terms and conditions as the Board may determine, including the grant
of shares based upon certain conditions, the grant of securities convertible
into Common Stock and the grant of stock appreciation rights.
8. ADJUSTMENTS FOR CHANGES IN COMMON STOCK AND CERTAIN OTHER EVENTS
(a) CHANGES IN CAPITALIZATION. In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this Plan,
(ii) the per-Participant limit set forth in Section 4(b), (iii) the number and
class of securities and exercise price per share subject to each outstanding
Option, (iv) the repurchase price per share subject to each outstanding
Restricted Stock Award, and (v) the terms of each other outstanding Award shall
be appropriately adjusted by the Company (or substituted Awards may be made, if
applicable) to the extent the Board shall determine, in good faith, that such an
adjustment (or substitution) is necessary and appropriate. If this Section 8(a)
applies and Section 8(c) also applies to any event, Section 8(c) shall be
applicable to such event, and this Section 8(a) shall not be applicable.
(b) LIQUIDATION OR DISSOLUTION. In the event of a proposed liquidation
or dissolution of the Company, the Board shall upon written notice to the
Participants provide that all then unexercised Options will (i) become
exercisable in full as of a specified time at least 10 business days prior to
the effective date of such liquidation or dissolution and (ii) terminate
effective upon such liquidation or dissolution, except to the extent exercised
before such effective date. The Board may specify the effect of a liquidation or
dissolution on any Restricted Stock Award or other Award granted under the Plan
at the time of the grant of such Award.
(c) Acquisition and Change in Control Events
(1) Definitions
(a) An "Acquisition Event" shall mean:
(i) any merger or consolidation of the Company
with or into another entity as a result of
which the Common Stock is converted into or
exchanged for the right to receive cash,
securities or other property; or
(ii) any exchange of shares of the Company for
cash, securities or other property pursuant
to a statutory share exchange transaction.
(b) A "Change in Control Event" shall mean:
5
<PAGE> 6
(i) any merger or consolidation which results in the
voting securities of the Company outstanding
immediately prior thereto representing immediately
thereafter (either by remaining outstanding or by
being converted into voting securities of the
surviving or acquiring entity) less than 50% of the
combined voting power of the voting securities of
the Company or such surviving or acquiring entity
outstanding immediately after such merger or
consolidation;
(ii) the acquisition by an individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2)
of the Exchange Act) (a "Person") of beneficial
ownership of any capital stock of the Company if,
after such acquisition, such Person beneficially
owns (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) 50% or more of either (A)
the then-outstanding shares of Common Stock of the
Company (the "Outstanding Company Common Stock") or
(B) the combined voting power of the
then-outstanding voting securities of the Company
entitled to vote generally in the election of
directors (the "Outstanding Company Voting
Securities"); PROVIDED, however, that for purposes
of this subsection (ii), the following acquisitions
shall not constitute a Sale: (A) any acquisition
directly from the Company, (B) any acquisition by
the Company, (C) any acquisition by any employee
benefit plan (or related trust) sponsored or
maintained by the Company or any corporation
controlled by the Company, or (D) any acquisition by
any corporation pursuant to a transaction which
results in all or substantially all of the
individuals and entities who were the beneficial
owners of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately
prior to such transaction beneficially own, directly
or indirectly, more than 50% of the then-outstanding
shares of common stock and the combined voting power
of the then-outstanding voting securities entitled
to vote generally in the election of directors,
respectively, of the resulting or acquiring
corporation in such transaction (which shall
include, without limitation, a corporation which as
a result of such transaction owns the Company or
substantially all of the Company's assets either
directly or through one or more subsidiaries) in
substantially the same proportions as their
ownership, immediately prior to such transaction, of
the Outstanding Company Common Stock and Outstanding
Company Voting Securities, respectively;
(iii) any sale of all or substantially all of the assets
of the Company; or
(iv) the complete liquidation of the Company.
6
<PAGE> 7
(2) Effect on Options
(a) ACQUISITION EVENT. Upon the occurrence of an Acquisition
Event (regardless of whether such event also constitutes a
Change in Control Event), or the execution by the Company
of any agreement with respect to an Acquisition Event
(regardless of whether such event will result in a Change
in Control Event), the Board shall provide that all
outstanding Options shall be assumed, or equivalent
options shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof); PROVIDED
THAT if such Acquisition Event also constitutes a Change
in Control Event, except to the extent specifically
provided to the contrary in the instrument evidencing any
Option or any other agreement between a Participant and
the Company, such assumed or substituted options shall be
immediately exercisable in full upon the occurrence of
such Acquisition Event. For purposes hereof, an Option
shall be considered to be assumed if, following
consummation of the Acquisition Event, the Option confers
the right to purchase, for each share of Common Stock
subject to the Option immediately prior to the
consummation of the Acquisition Event, the consideration
(whether cash, securities or other property) received as a
result of the Acquisition Event by holders of Common Stock
for each share of Common Stock held immediately prior to
the consummation of the Acquisition Event (and if holders
were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the
outstanding shares of Common Stock); provided, however,
that if the consideration received as a result of the
Acquisition Event is not solely common stock of the
acquiring or succeeding corporation (or an affiliate
thereof), the Company may, with the consent of the
acquiring or succeeding corporation, provide for the
consideration to be received upon the exercise of Options
to consist solely of common stock of the acquiring or
succeeding corporation (or an affiliate thereof)
equivalent in fair market value to the per share
consideration received by holders of outstanding shares of
Common Stock as a result of the Acquisition Event.
Notwithstanding the foregoing, if the acquiring or
succeeding corporation (or an affiliate thereof) does not
agree to assume, or substitute for, such Options, then the
Board shall, upon written notice to the Participants,
provide that all then unexercised Options will become
exercisable in full as of a specified time prior to the
Acquisition Event and will terminate immediately prior to
the consummation of such Acquisition Event, except to the
extent exercised by the Participants before the
consummation of such Acquisition Event; provided, however,
in the event of an Acquisition Event under the terms of
which holders of Common
7
<PAGE> 8
Stock will receive upon consummation thereof a cash
payment for each share of Common Stock surrendered
pursuant to such Acquisition Event (the "Acquisition
Price"), then the Board may instead provide that all
outstanding Options shall terminate upon consummation of
such Acquisition Event and that each Participant shall
receive, in exchange therefor, a cash payment equal to the
amount (if any) by which (A) the Acquisition Price
multiplied by the number of shares of Common Stock subject
to such outstanding Options (whether or not then
exercisable), exceeds (B) the aggregate exercise price of
such Options.
(b) CHANGE IN CONTROL EVENT THAT IS NOT AN ACQUISITION EVENT.
Upon the occurrence of a Change in Control Event that does
not also constitute an Acquisition Event, except to the
extent specifically provided to the contrary in the
instrument evidencing any Option or any other agreement
between a Participant and the Company, all Options
then-outstanding shall automatically become immediately
exercisable in full.
(3) Effect on Restricted Stock Awards
(a) ACQUISITION EVENT THAT IS NOT A CHANGE IN CONTROL EVENT.
Upon the occurrence of an Acquisition Event that is not a
Change in Control Event, the repurchase and other rights
of the Company under each outstanding Restricted Stock
Award shall inure to the benefit of the Company's
successor and shall apply to the cash, securities or other
property which the Common Stock was converted into or
exchanged for pursuant to such Acquisition Event in the
same manner and to the same extent as they applied to the
Common Stock subject to such Restricted Stock Award.
(b) CHANGE IN CONTROL EVENT. Upon the occurrence of a Change
in Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any Restricted Stock Award or any other
agreement between a Participant and the Company, all
restrictions and conditions on all Restricted Stock Awards
then-outstanding shall automatically be deemed terminated
or satisfied.
(4) Effect on Other Awards
(a) ACQUISITION EVENT THAT IS NOT A CHANGE IN CONTROL EVENT.
The Board shall specify the effect of an Acquisition Event
that is not a Change in Control Event on any other Award
granted under the Plan at the time of the grant of such
Award.
8
<PAGE> 9
(b) CHANGE IN CONTROL EVENT. Upon the occurrence of a Change
in Control Event (regardless of whether such event also
constitutes an Acquisition Event), except to the extent
specifically provided to the contrary in the instrument
evidencing any other Award or any other agreement between
a Participant and the Company, all other Awards shall
become exercisable, realizable or vested in full, or shall
be free of all conditions or restrictions, as applicable
to each such Award.
9. GENERAL PROVISIONS APPLICABLE TO AWARDS
(a) TRANSFERABILITY OF AWARDS. Except as the Board may otherwise
determine or provide in an Award, Awards shall not be sold, assigned,
transferred, pledged or otherwise encumbered by the person to whom they are
granted, either voluntarily or by operation of law, except by will or the laws
of descent and distribution, and, during the life of the Participant, shall be
exercisable only by the Participant. References to a Participant, to the extent
relevant in the context, shall include references to authorized transferees.
(b) DOCUMENTATION. Each Award shall be evidenced by a written
instrument in such form as the Board shall determine. Each Award may contain
terms and conditions in addition to those set forth in the Plan.
(c) BOARD DISCRETION. Except as otherwise provided by the Plan, each
Award may be made alone or in addition or in relation to any other Award. The
terms of each Award need not be identical, and the Board need not treat
Participants uniformly.
(d) TERMINATION OF STATUS. The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or other
change in the employment or other status of a Participant and the extent to
which, and the period during which, the Participant, the Participant's legal
representative, conservator, guardian or Designated Beneficiary may exercise
rights under the Award.
(e) WITHHOLDING. Each Participant shall pay to the Company, or make
provision satisfactory to the Board for payment of, any taxes required by law to
be withheld in connection with Awards to such Participant no later than the date
of the event creating the tax liability. Except as the Board may otherwise
provide in an Award, when the Common Stock is registered under the Exchange Act,
Participants may satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including shares retained from the Award creating the
tax obligation, valued at their Fair Market Value. The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of any
kind otherwise due to a Participant.
(f) AMENDMENT OF AWARD. The Board may amend, modify or terminate any
outstanding Award, including but not limited to, substituting therefor another
Award of the same or a different type, changing the date of exercise or
realization, and converting an Incentive Stock Option to a Nonstatutory Stock
Option, provided that the Participant's consent to such
9
<PAGE> 10
action shall be required unless the Board determines that the action, taking
into account any related action, would not materially and adversely affect the
Participant.
(g) CONDITIONS ON DELIVERY OF STOCK. The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company's counsel, all other legal matters
in connection with the issuance and delivery of such shares have been satisfied,
including any applicable securities laws and any applicable stock exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
(h) ACCELERATION. The Board may at any time provide that any Options
shall become immediately exercisable in full or in part, that any Restricted
Stock Awards shall be free of restrictions in full or in part or that any other
Awards may become exercisable in full or in part or free of some or all
restrictions or conditions, or otherwise realizable in full or in part, as the
case may be.
10. MISCELLANEOUS
(a) NO RIGHT TO EMPLOYMENT OR OTHER STATUS. No person shall have any
claim or right to be granted an Award, and the grant of an Award shall not be
construed as giving a Participant the right to continued employment or any other
relationship with the Company. The Company expressly reserves the right at any
time to dismiss or otherwise terminate its relationship with a Participant free
from any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) NO RIGHTS AS STOCKHOLDER. Subject to the provisions of the
applicable Award, no Participant or Designated Beneficiary shall have any rights
as a stockholder with respect to any shares of Common Stock to be distributed
with respect to an Award until becoming the record holder of such shares.
Notwithstanding the foregoing, in the event the Company effects a split of the
Common Stock by means of a stock dividend and the exercise price of and the
number of shares subject to such Option are adjusted as of the date of the
distribution of the dividend (rather than as of the record date for such
dividend), then an optionee who exercises an Option between the record date and
the distribution date for such stock dividend shall be entitled to receive, on
the distribution date, the stock dividend with respect to the shares of Common
Stock acquired upon such Option exercise, notwithstanding the fact that such
shares were not outstanding as of the close of business on the record date for
such stock dividend.
(c) EFFECTIVE DATE AND TERM OF PLAN. The Plan shall become effective on
the date on which it is adopted by the Board. No Awards shall be granted under
the Plan after the completion of ten years from the earlier of (i) the date on
which the Plan was adopted by the Board or (ii) the date the Plan was approved
by the Company's stockholders, but Awards previously granted may extend beyond
that date.
10
<PAGE> 11
(d) AMENDMENT OF PLAN. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time.
(e) GOVERNING LAW. The provisions of the Plan and all Awards made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
11
<PAGE> 1
EXHIBIT 5
HALE AND DOOR LLP
COUNSELLORS AT LAW
WWW.HALEDORR.COM
60 STATE STREET O BOSTON, MA 02109
617-526-6000 O FAX 617-526-5000
May 25, 2000
Akamai Technologies, Inc.
500 Technology Square
Cambridge, MA 02139
Re: Second Amended and Restated 1998 Stock Incentive Plan
-----------------------------------------------------
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 9,000,000 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 Second Amended and Restated 1998 Stock
Incentive Plan (the "Plan").
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.
Boston Washington, DC New York Reston London*
- --------------------------------------------------------------------------------
Hale and Dorr LLP Includes Professional Corporations
*an independent joint venture law firm
<PAGE> 2
Akamai Technologies, Inc.
May 25, 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
May 25, 2000
