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As filed with the Securities and Exchange Commission on January 18, 2001
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AKAMAI TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 04-3432319
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
500 TECHNOLOGY SQUARE
CAMBRIDGE, MASSACHUSETTS 02139
(617) 250-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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KATHRYN JORDEN MEYER
VICE PRESIDENT AND GENERAL COUNSEL
AKAMAI TECHNOLOGIES, INC.
500 TECHNOLOGY SQUARE
CAMBRIDGE, MASSACHUSETTS 02139
(617) 250-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
SUSAN W. MURLEY, ESQ.
JOHN H. CHORY, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
TELEPHONE: (617) 526-6000
TELECOPY: (617) 526-5000
<PAGE> 2
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
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. |X|
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. |_|_______.
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. |_|__________.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed Maximum Aggregate Amount of
Title of Each Class of Securities to be Registered (1) Offering Price (2)(3) Registration Fee (4)
-------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, $0.01 par value per share (5)............ (6) (6)
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Preferred Stock, $0.01 par value per share............. (6) (6)
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Debt Securities........................................ (6) (6)
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Warrants............................................... (6) (6)
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Total.................................................. $500,000,000 $125,000
=============================================================================================================
</TABLE>
(1) There are being registered hereunder such indeterminate number of shares of
common stock and preferred stock, such indeterminate number of warrants to
purchase common stock, preferred stock or debt securities and such
indeterminate principal amount of debt securities as shall have an
aggregate initial offering price not to exceed $500,000,000. If any debt
securities are issued at an original issue discount, then the offering
price of such debt securities shall be in such greater principal amount as
shall result in an aggregate initial offering price not to exceed
$500,000,000, less the aggregate dollar amount of all securities previously
issued hereunder. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder. The
securities registered also include such indeterminate amounts and numbers
of common stock, preferred stock and debt securities as may be issued upon
conversion of or exchange for preferred stock or debt securities that
provide for conversion or exchange, upon exercise of warrants or pursuant
to the antidilution provisions of any such securities.
(2) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(3) The proposed maximum per unit and aggregate offering prices per class of
security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered
hereunder.
(4) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933, as amended.
(5) The aggregate amount of common stock registered hereunder is limited, with
respect to at the market offerings, to that which is permissible under Rule
415(a)(4) under the Securities Act.
(6) Not required to be included in accordance with General Instruction II.D. of
Form S-3.
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THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS
MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
SHALL DETERMINE.
<PAGE> 4
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JANUARY 18, 2001
$500,000,000
AKAMAI TECHNOLOGIES, INC.
Common Stock
Preferred Stock
Debt Securities
Warrants
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We may from time to time issue up to $500,000,000 aggregate principal
amount of common stock, preferred stock, debt securities and warrants. We will
specify in the accompanying prospectus supplement the terms of the securities.
We may sell these securities to or through underwriters and also to other
purchasers or through agents. We will set forth the names of any underwriters or
agents in the accompanying prospectus supplement.
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INVESTING IN OUR SECURITIES INVOLVES RISKS. SEE "RISK FACTORS" ON PAGE 3.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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This prospectus may not be used to consummate sales of securities unless it
is accompanied by a prospectus supplement.
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Prospectus dated
<PAGE> 5
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS...............................................1
AKAMAI TECHNOLOGIES, INC............................................1
RATIO OF EARNINGS TO FIXED CHARGES..................................2
RISK FACTORS........................................................3
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION..................3
USE OF PROCEEDS.....................................................4
THE SECURITIES WE MAY OFFER.........................................5
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK.....................6
DESCRIPTION OF DEBT SECURITIES.....................................10
DESCRIPTION OF WARRANTS............................................16
LEGAL OWNERSHIP OF SECURITIES......................................18
PLAN OF DISTRIBUTION...............................................22
VALIDITY OF SECURITIES.............................................23
EXPERTS............................................................23
WHERE YOU CAN FIND MORE INFORMATION................................24
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE....................25
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $500,000,000. We have provided to
you in this prospectus a general description of the securities we may offer.
Each time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. We may also add,
update or change in the prospectus supplement any of the information contained
in this prospectus. This prospectus, together with applicable prospectus
supplements, includes all material information relating to this offering.
AKAMAI TECHNOLOGIES, INC.
We provide global delivery services for Internet content, streaming media
and applications and global Internet traffic management services. Our services
improve the speed, quality, availability, reliability and scalability of Web
sites. Our services deliver our customers' Internet content, streaming media and
applications through a distributed worldwide server network which locates the
content and applications geographically closer to users. Using technology and
software that is based on our proprietary mathematical formulas, or algorithms,
we monitor Internet traffic patterns and deliver our customers' content and
applications by the most efficient route available. Our services are easy to
implement and do not require our customers or their Web site visitors to modify
their hardware or software. Using our FreeFlow service, our customers have been
able to more than double the speed at which they deliver content to their users
and, in some instances, have been able to improve speeds by ten times or more.
Our streaming services offer customers enhanced video and audio quality,
scalability and reliability.
We were incorporated in Delaware in 1998. Our principal executive offices
are located at 500 Technology Square, Cambridge, Massachusetts 02139, and our
telephone number is (617) 250-3000. Our World Wide Web site address is
www.akamai.com. We have not incorporated by reference into this prospectus the
information on our Web site and you should not consider it to be a part of this
document. Our Web site address is included in this document as an inactive
textual reference only. The Akamai logo, EdgeAdvantage(TM), EdgeScape(SM),
EdgeSuite(SM), FirstPoint(SM), FreeFlow(SM), FreeFlow Streaming(SM),
SteadyStream(TM), StorageFlow(SM) and Traffic Analyzer(SM) are trademarks or
service marks of us or our subsidiaries. All other trademarks or trade names in
this prospectus are the property of their respective owners.
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DEFICIENCY OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS)
We have not recorded earnings for the period from inception (August 20,
1998) to December 31, 1998, for the year ended December 31, 1999 or for the nine
months ended September 30, 2000 and therefore are unable to cover fixed charges.
Earnings (loss) consists of loss before provision for income taxes and
extraordinary items plus fixed charges. Fixed charges consist of interest
expense, amortization of deferred financing costs and a portion of rental
expense that we believe to be representative of interest. The following table
discloses our dollar coverage deficiency. The ratio of earnings to fixed charges
is not disclosed since it is a negative number in each year and period.
Year ended Nine months ended
December 31, September 30,
1998 1999 2000
---- ---- -----------------
Ratio of earnings to fixed charges --- --- ---
Coverage deficiency to attain a ratio of 1:1 $890 $54,169 $582,576
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RISK FACTORS
Investing in our securities involves risk. The prospectus supplement
applicable to each type or series of securities we offer will contain a
discussion of risks applicable to an investment in Akamai and the particular
type of securities that we are offering under that prospectus supplement. Before
making an investment decision, you should carefully consider the specific
factors discussed under the caption "Risk Factors" in the applicable prospectus
supplement as well as other information we include or incorporate by reference
in this prospectus and the applicable prospectus supplement. The risks and
uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently deem immaterial may also affect our business operations.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus contains forward-looking statements that involve
substantial risks and uncertainties. You can identify these statements by
forward-looking words such as "anticipate," "believe," "could," "estimate,"
"expect," "intend," "may," "should," "will," and "would" or similar words. You
should carefully read statements that contain these words because they discuss
our future expectations, contain projections of our future results of operations
or of our financial position or state other "forward-looking" information. We
believe that it is important to communicate our future expectations to our
investors. However, there may be events in the future that we are not able to
accurately predict or control. The factors listed above in the section captioned
"Risk Factors," as well as any cautionary language in this prospectus, provide
examples of risks, uncertainties and events that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. Before you invest, you should be aware that the occurrence of the
events described in these risk factors and elsewhere in this prospectus could
have a material adverse effect on our business, results of operations and
financial position.
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USE OF PROCEEDS
Unless we otherwise indicate in the applicable prospectus supplement, we
currently intend to use the net proceeds from the sale of the securities for
working capital and other general corporate purposes, including:
- to finance our growth;
- for capital expenditures made in the ordinary course of business,
including facilities expansion; and
- for acquisitions of businesses, products and technologies that
complement or expand our business.
We may set forth additional information on the use of net proceeds from the
sale of securities we offer under this prospectus in a prospectus supplement
relating to the specific offering.
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THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize the material terms and
provisions of the various types of securities that we may offer. We will
describe in the applicable prospectus supplement relating to any securities the
particular terms of the securities offered by that prospectus supplement. If we
indicate particular terms in the applicable prospectus supplement, the terms of
the securities may differ from the terms we have summarized below. We will also
include in the prospectus supplement information, where applicable, about
material United States federal income tax considerations relating to the
securities, and the securities exchange, if any, on which the securities will be
listed.
We may sell from time to time, in one or more offerings:
- common stock;
- preferred stock;
- debt securities; and
- warrants to purchase any of the securities listed above.
In this prospectus, we will refer to the common stock, preferred stock,
debt securities and warrants collectively as "securities." The total dollar
amount of all securities that we may issue will not exceed $500,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of securities unless
it is accompanied by a prospectus supplement.
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DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred stock, together
with the additional information we include in any applicable prospectus
supplements, summarizes the material terms and provisions of the common stock
and preferred stock that we may offer under this prospectus. For the complete
terms of our common stock and preferred stock, please refer to our charter and
by-laws, which are incorporated by reference into the registration statement
which includes this prospectus. The General Corporation Law of Delaware may also
affect the terms of these securities. While the terms we have summarized below
will apply generally to any future common stock or preferred stock that we may
offer, we will describe the particular terms of any series of these securities
in more detail in the applicable prospectus supplement. If we indicate in a
prospectus supplement, the terms of any common stock or preferred stock we offer
under that prospectus supplement may differ from the terms we describe below.
Our authorized capital stock consists of 700,000,000 shares of common stock
$0.01 par value per share, and 5,000,000 shares of preferred stock, $0.01 par
value per share. As of January 16, 2001, we had 108,571,949 shares of common
stock outstanding held by 549 stockholders of record. As of January 16, 2001, no
shares of preferred stock were outstanding.
COMMON STOCK
VOTING. Holders of our common stock are entitled to one vote for each share
held on matters submitted to a vote of stockholders. Holders of our common stock
do not have cumulative voting rights. Accordingly, holders of a a majority of
the shares of common stock entitled to vote in any election of directors may
elect all of the directors standing for election.
DIVIDENDS. Holders of common stock are entitled to receive their
proportionate share of any dividends declared by the board of directors, subject
to any preferential dividend rights of outstanding preferred stock.
LIQUIDATION AND DISSOLUTION. Upon our liquidation, dissolution or winding
up, the holders of common stock are entitled to receive ratably our net assets
available after the payment of all debts and other liabilities and subject to
the preferential rights of any outstanding preferred stock.
OTHER RIGHTS AND RESTRICTIONS. The common stock has no preemptive,
subscription, redemption or conversion rights. All outstanding shares of common
stock are fully paid and nonassessable. The rights, preferences and privileges
of the common stock are subject to the rights of the holders of shares of any
series of preferred stock which we may designate and issue in the future.
LISTING. Our common stock is listed on the Nasdaq National Market.
TRANSFER AGENT AND REGISTRAR. The transfer agent and registrar for our
common stock is EquiServe.
PREFERRED STOCK
GENERAL. Our charter authorizes our board of directors to issue preferred
stock in one or more series and to determine the voting rights and dividend
rights, dividend rates, liquidation preferences, conversion rights, redemption
rights, including sinking fund provisions and redemption prices, and other terms
and rights of each series of preferred stock. We will fix the rights,
preferences, privileges and restrictions of the preferred stock of each series
in the certificate of designation relating to that series. We will incorporate
by reference as an exhibit to the registration statement which includes this
prospectus the form of any certificate of designation which describes the terms
of the series of preferred stock we are offering before the issuance of the
related series of preferred stock. This description will include:
- the title and stated value;
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- the number of shares we are offering;
- the liquidation preference per share;
- the purchase price;
- the dividend rate, period and payment date, and method of calculation
for dividends;
- whether dividends will be cumulative or non-cumulative and, if
cumulative, the date from which dividends will accumulate;
- the procedures for any auction and remarketing, if any;
- the provisions for a sinking fund, if any;
- the provisions for redemption or repurchase, if applicable, and any
restrictions on our ability to exercise those redemption and
repurchase rights;
- any listing of the preferred stock on any securities exchange or
market;
- whether the preferred stock will be convertible into our common stock,
and, if applicable, the conversion price, or how it will be
calculated, and the conversion period;
- whether the preferred stock will be exchangeable into debt securities,
and, if applicable, the exchange price, or how it will be calculated,
and the exchange period;
- voting rights, if any, of the preferred stock;
- preemption rights, if any;
- restrictions on transfer, sale or other assignment, if any;
- whether interests in the preferred stock will be represented by
depositary shares;
- a discussion of any material or special United States federal income
tax considerations applicable to the preferred stock;
- the relative ranking and preferences of the preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs;
- any limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the series of preferred stock as
to dividend rights and rights if we liquidate, dissolve or wind up our
affairs; and
- any other specific terms, preferences, rights or limitations of, or
restrictions on, the preferred stock.
When we issue shares of preferred stock under this prospectus, the shares,
when issued, will be fully paid and non-assessable and will not have, or be
subject to, any preemptive or similar rights.
VOTING RIGHTS. The General Corporation Law of Delaware provides that the
holders of preferred stock will have the right to vote separately as a class on
any proposal involving fundamental changes in the rights of holders of that
preferred stock. This right is in addition to any voting rights that may be
provided for in the applicable certificate of designation.
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OTHER. The preferred stock could have other rights, including economic
rights senior to our common stock, so that the issuance of the preferred stock
could adversely affect the market value of our common stock. The issuance of the
preferred stock may also have the effect of delaying, deferring or preventing a
change in control of us without any action by the stockholders.
CERTAIN EFFECTS OF AUTHORIZED BUT UNISSUED STOCK
We have shares of common stock and preferred stock available for future
issuance without stockholder approval. We may utilize these additional shares
for a variety of corporate purposes, including future public offerings to raise
additional capital, corporate acquisitions or dividends on the capital stock.
The existence of unissued and unreserved common stock and preferred stock
may enable our board of directors to issue shares to persons friendly to current
management or to issue preferred stock with terms that could render more
difficult or discourage a third-party attempt to obtain control of us by means
of a merger, tender offer, proxy contest or otherwise, thereby protecting the
continuity of our management. In addition, if we issue preferred stock, the
issuance could adversely affect the voting power of holders of common stock and
the likelihood that such holders will receive dividend payments and payments
upon liquidation.
DELAWARE LAW
BUSINESS COMBINATIONS. We are subject to the provisions of Section 203 of
the General Corporation Law of Delaware. Section 203 prohibits a publicly held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless the
business combination is approved in a prescribed manner. A "business
combination" includes mergers, asset sales and other transactions resulting in a
financial benefit to the interested stockholder. Subject to specified
exceptions, an "interested stockholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock.
CHARTER AND BY-LAW PROVISIONS
Our certificate of incorporation and by-laws provide:
- That the board of directors be divided into three classes, as nearly
equal in size as possible, with no class having more than one director
more than any other class, with staggered three-year terms;
- That directors may be removed only for cause by the vote of the
holders of at least 66% of the shares of our capital stock entitled to
vote; and
- That any vacancy on the board of directors, however occurring,
including a vacancy resulting from an enlargement of the board, may
only be filled by vote of a majority of the directors then in office.
The classification of the board of directors and the limitations on the
removal of directors and filling of vacancies could make it more difficult for a
third party to acquire, or discourage a third party from acquiring, us.
The certificate of incorporation and by-laws also provide that;
- Any action required or permitted to be taken by the stockholders at an
annual meeting or special meeting of stockholders may only be taken if
it is properly brought before such meeting and may not be taken by
written action in lieu of a meeting; and
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- Special meetings of the stockholders may only be called by the
chairman of the board of director, the president, or by the board of
directors. Our by-laws will also provide that, in order for any matter
to be considered "properly brought" before a meeting, a stockholder
must comply with requirements regarding advance notice to us.
These provisions could delay until the next stockholders' meeting
stockholder actions which are favored by the holders of a majority of our
outstanding voting securities. These provisions may also discourage another
person or entity from making a tender offer for our common stock, because such
person or entity, even if it acquired a majority of our outstanding voting
securities, would be able to take action as a stockholder only at a duly called
stockholders meeting, and not by written consent.
Delaware law provides that the vote of a majority of the shares entitled to
vote on any matter is required to amend a corporation's certificate of
incorporation or by-laws, unless a corporation's certificate of incorporation or
by-laws, as the case may be, requires a greater percentage. Our certificate of
incorporation requires the vote of the holders of at least 75% of the shares of
our capital stock entitled to vote to amend or repeal any of the foregoing
provisions of our certificate of incorporation. Generally, our by-laws may be
amended or repealed by a majority vote of the board of directors or the holders
of a majority of the shares of our capital stock issued and outstanding and
entitled to vote. Changes to our by-laws regarding special meetings of
stockholders, written actions of stockholders in lieu of a meeting, and the
election, removal and classification of members of the board of directors
require the vote of the holders of at least 75% of the shares of our capital
stock entitled to vote. The stockholder vote would be in addition to any
separate class vote that might in the future be required pursuant to the terms
of any series of preferred stock that might be then outstanding.
LIMITATION OF LIABILITY AND INDEMNIFICATION
Our certificate of incorporation provides that our directors and officers
shall be indemnified by us except to the extent prohibited by Delaware law. This
indemnification covers all expenses and liabilities reasonably incurred in
connection with their services for or on behalf of us. In addition, our
certificate of incorporation provides that our directors will not be personally
liable for monetary damages to us or to our stockholders for breaches of their
fiduciary duty as directors, unless they violated their duty of loyalty to us or
our stockholders, acted in bad faith, knowingly or intentionally violated the
law, authorized illegal dividends or redemptions or derived an improper personal
benefit from their action as directors.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the debt securities that we may offer under this prospectus.
While the terms we have summarized below will apply generally to any future debt
securities we may offer, we will describe the particular terms of any debt
securities that we may offer in more detail in the applicable prospectus
supplement. If we indicate in a prospectus supplement, the terms of any debt
securities we offer under that prospectus supplement may differ from the terms
we describe below.
We will issue the senior notes under one or more senior indentures which we
will enter into with a trustee to be named in the senior indentures. We will
issue the subordinated notes under one or more subordinated indentures which we
will enter into with a trustee to be named in the subordinated indentures. We
have filed forms of these documents as exhibits to the registration statement
which includes this prospectus. We use the term "indentures" to refer to both
the senior indenture and the subordinated indenture. The indentures will be
qualified under the Trust Indenture Act. We use the term "trustee" to refer to
either the senior trustee or the subordinated trustee, as applicable.
The following summaries of material provisions of the senior notes, the
subordinated notes and the indentures are subject to, and qualified in their
entirety by reference to, the provisions of the indenture applicable to a
particular series of debt securities. Except as we may otherwise indicate, the
terms of the senior indenture and the subordinated indenture are identical.
We conduct some of our operations through our subsidiaries. Our rights and
the rights of our creditors, including holders of debt securities, to the assets
of any subsidiary of ours upon that subsidiary's liquidation or reorganization
or otherwise would be subject to the prior claims of that subsidiary's
creditors, except to the extent that we may be a creditor with recognized claims
against the subsidiary. Our subsidiaries' creditors would include trade
creditors, debt holders, secured creditors and taxing authorities. Except as we
may provide in a prospectus supplement, neither the debt securities nor the
indentures restrict us or any of our subsidiaries from incurring indebtedness.
GENERAL
We will describe in the applicable prospectus supplement the following
terms relating to a series of notes:
- the title;
- any limit on the amount that may be issued;
- whether or not we will issue the series of notes in global form, the
terms and who the depository will be;
- the maturity date;
- the annual interest rate, which may be fixed or variable, or the
method for determining the rate and the date interest will begin to
accrue, the dates interest will be payable and the regular record
dates for interest payment dates or the method for determining such
dates;
- whether or not the notes will be secured or unsecured, and the terms
of any secured debt;
- the terms of the subordination of any series of subordinated debt;
- the place where payments will be payable;
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- our right, if any, to defer payment of interest and the maximum length
of any such deferral period;
- the date, if any, after which, and the price at which, we may, at our
option, redeem the series of notes pursuant to any optional redemption
provisions;
- the date, if any, on which, and the price at which we are obligated,
pursuant to any mandatory sinking fund provisions or otherwise, to
redeem, or at the holder's option to purchase, the series of notes;
- whether the indenture will restrict our ability to pay dividends, or
will require us to maintain any asset ratios or reserves;
- whether we will be restricted from incurring any additional
indebtedness;
- a discussion on any material or special United States federal income
tax considerations applicable to the notes;
- the denominations in which we will issue the series of notes, if other
than denominations of $1,000 and any integral multiple thereof; and
- any other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities.
CONVERSION OR EXCHANGE RIGHTS
We will set forth in the applicable prospectus supplement the terms on
which a series of notes may be convertible into or exchangeable for common stock
or other securities of ours. We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of common stock or
other securities of ours that the holders of the series of notes receive would
be subject to adjustment.
CONSOLIDATION, MERGER OR SALE
The indentures will not contain any covenant which restricts our ability to
merge or consolidate, or sell, convey, transfer or otherwise dispose of all or
substantially all of our assets. However, any successor to or acquirer of such
assets must assume all of our obligations under the indentures or the notes, as
appropriate.
EVENTS OF DEFAULT UNDER THE INDENTURE
The following will be events of default under the indentures with respect
to any series of notes that we may issue:
- if we fail to pay interest when due and our failure continues for 90
days and the time for payment has not been extended or deferred;
- if we fail to pay the principal, or premium, if any, when due and the
time for payment has not been extended or delayed;
- if we fail to observe or perform any other covenant contained in the
notes or the indentures, other than a covenant specifically relating
to another series of notes, and our failure continues for 90 days
after we receive notice from the trustee or holders of at least 25% in
aggregate principal amount of the outstanding notes of the applicable
series; and
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- if specified events of bankruptcy, insolvency or reorganization occur
to us.
If an event of default with respect to notes of any series occurs and is
continuing, the trustee or the holders of at least 25% in aggregate principal
amount of the outstanding notes of that series, by notice to us in writing, and
to the trustee if notice is given by such holders, may declare the unpaid
principal of, premium, if any, and accrued interest, if any, due and payable
immediately.
The holders of a majority in principal amount of the outstanding notes of
an affected series may waive any default or event of default with respect to the
series and its consequences, except defaults or events of default regarding
payment of principal, premium, if any, or interest, unless we have cured the
default or event of default in accordance with the applicable indenture. Any
waiver shall cure the default or event of default.
Subject to the terms of the indentures, if an event of default under an
indenture shall occur and be continuing, the trustee will be under no obligation
to exercise any of its rights or powers under such indenture at the request or
direction of any of the holders of the applicable series of notes, unless such
holders have offered the trustee reasonable indemnity. The holders of a majority
in principal amount of the outstanding notes of any series will have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the notes of that series, provided that:
- the direction so given by the holder is not in conflict with any law
or the applicable indenture; and
- subject to its duties under the Trust Indenture Act, the trustee need
not take any action that might involve it in personal liability or
might be unduly prejudicial to the holders not involved in the
proceeding.
A holder of the notes of any series will only have the right to institute a
proceeding under the indentures or to appoint a receiver or trustee, or to seek
other remedies if:
- the holder has given written notice to the trustee of a continuing
event of default with respect to that series;
- the holders of at least 25% in aggregate principal amount of the
outstanding notes of that series have made written request, and such
holders have offered reasonable indemnity to the trustee to institute
the proceeding as trustee; and
- the trustee does not institute the proceeding, and does not receive
from the holders of a majority in aggregate principal amount of the
outstanding notes of that series other conflicting directions within
60 days after the notice, request and offer.
These limitations do not apply to a suit instituted by a holder of notes if
we default in the payment of the principal, premium, if any, or interest on, the
notes.
We will periodically file statements with the trustee regarding our
compliance with specified covenants in the indentures.
MODIFICATION OF INDENTURE; WAIVER
We and the trustee may change an indenture without the consent of any
holders with respect to specific matters, including:
- to fix any ambiguity, defect or inconsistency in the indenture; and
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- to change anything that does not materially adversely affect the
interests of any holder of notes of any series.
In addition, under the indentures, the rights of holders of a series of
notes may be changed by us and the trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding
notes of each series that is affected. However, we and the trustee may only make
the following changes with the consent of each holder of any outstanding notes
affected:
- extending the fixed maturity of the series of notes;
- reducing the principal amount, reducing the rate of or extending the
time of payment of interest, or any premium payable upon the
redemption of any notes; or
- reducing the minimum percentage of notes, the holders of which are
required to consent to any amendment.
DISCHARGE
Each indenture will provide that we can elect to be discharged from
our obligations with respect to one or more series of debt securities, except
for obligations to:
- register the transfer or exchange of debt securities of the series;
- replace stolen, lost or mutilated debt securities of the series;
- maintain paying agencies;
- hold monies for payment in trust;
- compensate and indemnify the trustee; and
- appoint any successor trustee.
In order to exercise our rights to be discharged, we must deposit with the
trustee money or government obligations sufficient to pay all the principal of,
any premium, if any, and interest on, the debt securities of the series on the
dates payments are due.
FORM, EXCHANGE AND TRANSFER
We will issue the notes of each series only in fully registered form
without coupons and, unless we otherwise specify in the applicable prospectus
supplement, in denominations of $1,000 and any integral multiple thereof. The
indentures will provide that we may issue notes of a series in temporary or
permanent global form and as book-entry securities that will be deposited with,
or on behalf of, The Depository Trust Company or another depository named by us
and identified in a prospectus supplement with respect to that series. See
"Legal Ownership of Securities" for a further description of the terms relating
to any book-entry securities.
At the option of the holder, subject to the terms of the indentures and the
limitations applicable to global securities described in the applicable
prospectus supplement, the holder of the notes of any series can exchange the
notes for other notes of the same series, in any authorized denomination and of
like tenor and aggregate principal amount.
Subject to the terms of the indentures and the limitations applicable to
global securities set forth in the applicable prospectus supplement, holders of
the notes may present the notes for exchange or for registration of transfer,
duly endorsed or with the form of transfer endorsed thereon duly executed if so
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required by us or the security registrar, at the office of the security
registrar or at the office of any transfer agent designated by us for this
purpose. Unless otherwise provided in the notes that the holder presents for
transfer or exchange, we will not require any payment for any registration of
transfer or exchange, but we may require payment of any taxes or other
governmental charges.
We will name in the applicable prospectus supplement the security
registrar, and any transfer agent in addition to the security registrar, that we
initially designate for any notes. We may at any time designate additional
transfer agents or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except that we will
be required to maintain a transfer agent in each place of payment for the notes
of each series.
If we elect to redeem the notes of any series, we will not be required to:
- issue, register the transfer of, or exchange any notes of that series
during a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any notes that may be
selected for redemption and ending at the close of business on the day
of the mailing; or
- register the transfer of or exchange any notes so selected for
redemption, in whole or in part, except the unredeemed portion of any
notes we are redeeming in part.
INFORMATION CONCERNING THE TRUSTEE
The trustee, other than during the occurrence and continuance of an event
of default under an indenture, undertakes to perform only those duties as are
specifically set forth in the applicable indenture. Upon an event of default
under an indenture, the trustee must use the same degree of care as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the trustee is under no obligation to exercise any of the
powers given it by the indentures at the request of any holder of notes unless
it is offered reasonable security and indemnity against the costs, expenses and
liabilities that it might incur.
PAYMENT AND PAYING AGENTS
Unless we otherwise indicate in the applicable prospectus supplement, we
will make payment of the interest on any notes on any interest payment date to
the person in whose name the notes, or one or more predecessor securities, are
registered at the close of business on the regular record date for the interest.
We will pay principal of and any premium and interest on the notes of a
particular series at the office of the paying agents designated by us, except
that unless we otherwise indicate in the applicable prospectus supplement, will
we make interest payments by check which we will mail to the holder. Unless we
otherwise indicate in a prospectus supplement, we will designate the corporate
trust office of the trustee in New York, New York as our sole paying agent for
payments with respect to notes of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for
the notes of a particular series. We will maintain a paying agent in each place
of payment for the notes of a particular series.
All money we pay to a paying agent or the trustee for the payment of the
principal of or any premium or interest on any notes which remains unclaimed at
the end of two years after such principal, premium or interest has become due
and payable will be repaid to us, and the holder of the security thereafter may
look only to us for payment thereof.
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GOVERNING LAW
The indentures and the notes will be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
Trust Indenture Act is applicable.
SUBORDINATION OF SUBORDINATED NOTES
The subordinated notes will be unsecured and will be subordinate and junior
in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement. The subordinated indenture does not limit
the amount of subordinated notes which we may issue. It also does not limit us
from issuing any other secured or unsecured debt.
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DESCRIPTION OF WARRANTS
The following description, together with the additional information we may
include in any applicable prospectus supplements, summarizes the material terms
and provisions of the warrants that we may offer under this prospectus and the
related warrant agreements and warrant certificates. While the terms summarized
below will apply generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable
prospectus supplement. If we indicate in the prospectus supplement, the terms of
any warrants offered under that prospectus supplement may differ from the terms
described below. Specific warrant agreements will contain additional important
terms and provisions and will be incorporated by reference as an exhibit to the
registration statement which includes this prospectus.
GENERAL
We may issue warrants for the purchase of common stock, preferred stock or
debt securities in one or more series. We may issue warrants independently or
together with common stock, preferred stock and debt securities, and the
warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates that we
will issue under a separate agreement. We will enter into the warrant agreement
with a warrant agent. Each warrant agent will be a bank that we select which has
its principal office in the United States and a combined capital and surplus of
at least $50,000,000. We will indicate the name and address of the warrant agent
in the applicable prospectus supplement relating to a particular series of
warrants.
We will describe in the applicable prospectus supplement the terms of the
series of warrants, including:
- the offering price and aggregate number of warrants offered;
- the currency for which the warrants may be purchased;
- if applicable, the designation and terms of the securities with which
the warrants are issued and the number of warrants issued with each
such security or each principal amount of such security;
- if applicable, the date on and after which the warrants and the
related securities will be separately transferable;
- in the case of warrants to purchase debt securities, the principal
amount of debt securities purchasable upon exercise of one warrant and
the price at, and currency in which, this principal amount of debt
securities may be purchased upon such exercise;
- in the case of warrants to purchase common stock or preferred stock,
the number of shares of common stock or preferred stock, as the case
may be, purchasable upon the exercise of one warrant and the price at
which these shares may be purchased upon such exercise;
- the effect of any merger, consolidation, sale or other disposition of
our business on the warrant agreement and the warrants;
- the terms of any rights to redeem or call the warrants;
- any provisions for changes to or adjustments in the exercise price or
number of securities issuable upon exercise of the warrants;
- the dates on which the right to exercise the warrants will commence
and expire;
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- the manner in which the warrant agreement and warrants may be
modified;
- federal income tax consequences of holding or exercising the warrants;
- the terms of the securities issuable upon exercise of the warrants;
and
- any other specific terms, preferences, rights or limitations of or
restrictions on the warrants.
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to
receive payments of principal of, or premium, if any, or interest on,
the debt securities purchasable upon exercise or to enforce covenants
in the applicable indenture; or
- in the case of warrants to purchase common stock or preferred stock,
the right to receive dividends, if any, or, payments upon our
liquidation, dissolution or winding up or to exercise voting rights,
if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities that we
specify in the applicable prospectus supplement at the exercise price that we
describe in the applicable prospectus supplement. Unless we otherwise specify in
the applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to 5:00 p.m. eastern standard time on the expiration
date that we set forth in the applicable prospectus supplement. After the close
of business on the expiration date, unexercised warrants will become void.
Holders of the warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with specified
information, and paying the required amount to the warrant agent in immediately
available funds, as provided in the applicable prospectus supplement. We will
set forth on the reverse side of the warrant certificate and in the applicable
prospectus supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
Upon receipt of the required payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will
issue and deliver the securities purchasable upon such exercise. If fewer than
all of the warrants represented by the warrant certificate are exercised, then
we will issue a new warrant certificate for the remaining amount of warrants. If
we so indicate in the applicable prospectus supplement, holders of the warrants
may surrender securities as all or part of the exercise price for warrants.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder
of any other warrant, enforce by appropriate legal action its right to exercise,
and receive the securities purchasable upon exercise of, its warrants.
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LEGAL OWNERSHIP OF SECURITIES
We can issue securities in registered form or in the form of one or more
global securities. We describe global securities in greater detail below. We
refer to those persons who have securities registered in their own names on the
books that we or any applicable trustee maintain for this purpose as the
"holders" of those securities. These persons are the legal holders of the
securities. We refer to those persons who, indirectly through others, own
beneficial interests in securities that are not registered in their own names,
as "indirect holders" of those securities. As we discuss below, indirect holders
are not legal holders, and investors in securities issued in book-entry form or
in street name will be indirect holders.
BOOK-ENTRY HOLDERS
We may issue securities in book-entry form only, as we will specify in the
applicable prospectus supplement. This means securities may be represented by
one or more global securities registered in the name of a financial institution
that holds them as depositary on behalf of other financial institutions that
participate in the depositary's book-entry system. These participating
institutions, which are referred to as participants, in turn, hold beneficial
interests in the securities on behalf of themselves or their customers.
Only the person in whose name a security is registered is recognized as the
holder of that security. Securities issued in global form will be registered in
the name of the depositary or its participants. Consequently, for securities
issued in global form, we will recognize only the depositary as the holder of
the securities, and we will make all payments on the securities to the
depositary. The depositary passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners. The depositary and its participants do so under
agreements they have made with one another or with their customers; they are not
obligated to do so under the terms of the securities.
As a result, investors in a book-entry security will not own securities
directly. Instead, they will own beneficial interests in a global security,
through a bank, broker or other financial institution that participates in the
depositary's book-entry system or holds an interest through a participant. As
long as the securities are issued in global form, investors will be indirect
holders, and not holders, of the securities.
STREET NAME HOLDERS
We may terminate a global security or issue securities in non-global form.
In these cases, investors may choose to hold their securities in their own names
or in "street name." Securities held by an investor in street name would be
registered in the name of a bank, broker or other financial institution that the
investor chooses, and the investor would hold only a beneficial interest in
those securities through an account he or she maintains at that institution.
For securities held in street name, we will recognize only the intermediary
banks, brokers and other financial institutions in whose names the securities
are registered as the holders of those securities, and we will make all payments
on those securities to them. These institutions pass along the payments they
receive to their customers who are the beneficial owners, but only because they
agree to do so in their customer agreements or because they are legally required
to do so. Investors who hold securities in street name will be indirect holders,
not holders, of those securities.
LEGAL HOLDERS
Our obligations, as well as the obligations of any applicable trustee and
of any third parties employed by us or a trustee, run only to the legal holders
of the securities. We do not have obligations to investors who hold beneficial
interests in global securities, in street name or by any other indirect means.
This will be the case whether an investor chooses to be an indirect holder of a
security or has no choice because we are issuing the securities only in global
form.
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For example, once we make a payment or give a notice to the holder, we have
no further responsibility for the payment or notice even if that holder is
required, under agreements with depositary participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, we may
want to obtain the approval of the holders to amend an indenture, to relieve us
of the consequences of a default or of our obligation to comply with a
particular provision of the indenture or for other purposes. In such an event,
we would seek approval only from the holders, and not the indirect holders, of
the securities. Whether and how the holders contact the indirect holders is up
to the holders.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS
If you hold securities through a bank, broker or other financial
institution, either in book-entry form or in street name, you should check with
your own institution to find out:
- how it handles securities payments and notices;
- whether it imposes fees or charges;
- how it would handle a request for the holders' consent, if ever
required;
- whether and how you can instruct it to send you securities registered
in your own name so you can be a holder, if that is permitted in the
future;
- how it would exercise rights under the securities if there were a
default or other event triggering the need for holders to act to
protect their interests; and
- if the securities are in book-entry form, how the depositary's rules
and procedures will affect these matters.
GLOBAL SECURITIES
A global security is a security held by a depositary which represents one
or any other number of individual securities. Generally, all securities
represented by the same global securities will have the same terms.
Each security issued in book-entry form will be represented by a global
security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depositary. Unless we specify otherwise in
the applicable prospectus supplement, The Depository Trust Company, New York,
New York, known as DTC, will be the depositary for all securities issued in
book-entry form.
A global security may not be transferred to or registered in the name of
anyone other than the depositary, its nominee or a successor depositary, unless
special termination situations arise. We describe those situations below under
"--Special Situations When a Global Security Will Be Terminated." As a result of
these arrangements, the depositary, or its nominee, will be the sole registered
owner and holder of all securities represented by a global security, and
investors will be permitted to own only beneficial interests in a global
security. Beneficial interests must be held by means of an account with a
broker, bank or other financial institution that in turn has an account with the
depositary or with another institution that does. Thus, an investor whose
security is represented by a global security will not be a holder of the
security, but only an indirect holder of a beneficial interest in the global
security.
If the prospectus supplement for a particular security indicates that the
security will be issued in global form only, then the security will be
represented by a global security at all times unless and until the global
security is terminated. If termination occurs, we may issue the securities
through another book-entry clearing system or decide that the securities may no
longer be held through any book-entry clearing system.
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SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES
As an indirect holder, an investor's rights relating to a global security
will be governed by the account rules of the investor's financial institution
and of the depositary, as well as general laws relating to securities transfers.
We do not recognize an indirect holder as a holder of securities and instead
deal only with the depositary that holds the global security.
If securities are issued only in the form of a global security, an investor
should be aware of the following:
- an investor cannot cause the securities to be registered in his or her
name, and cannot obtain non-global certificates for his or her
interest in the securities, except in the special situations we
describe below;
- an investor will be an indirect holder and must look to his or her own
bank or broker for payments on the securities and protection of his or
her legal rights relating to the securities, as we describe under
"Legal Ownership of Securities;"
- an investor may not be able to sell interests in the securities to
some insurance companies and to other institutions that are required
by law to own their securities in non-book-entry form;
- an investor may not be able to pledge his or her interest in a global
security in circumstances where certificates representing the
securities must be delivered to the lender or other beneficiary of the
pledge in order for the pledge to be effective;
- the depositary's policies, which may change from time to time, will
govern payments, transfers, exchanges and other matters relating to an
investor's interest in a global security. We and any applicable
trustee have no responsibility for any aspect of the depositary's
actions or for its records of ownership interests in a global
security. We and the trustee also do not supervise the depositary in
any way;
- the depositary may, and we understand that DTC will, require that
those who purchase and sell interests in a global security within its
book-entry system use immediately available funds, and your broker or
bank may require you to do so as well; and
- financial institutions that participate in the depositary's book-entry
system, and through which an investor holds its interest in a global
security, may also have their own policies affecting payments, notices
and other matters relating to the securities. There may be more than
one financial intermediary in the chain of ownership for an investor.
We do not monitor and are not responsible for the actions of any of
those intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED
In a few special situations described below, the global security will
terminate and interests in it will be exchanged for physical certificates
representing those interests. After that exchange, the choice of whether to hold
securities directly or in street name will be up to the investor. Investors must
consult their own banks or brokers to find out how to have their interests in
securities transferred to their own name, so that they will be direct holders.
We have described the rights of holders and street name investors above.
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The global security will terminate when the following special situations
occur:
- if the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary for that global security
and we do not appoint another institution to act as depositary within
90 days;
- if we notify any applicable trustee that we wish to terminate that
global security; or
- if an event of default has occurred with regard to securities
represented by that global security and has not been cured or waived.
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series of
securities covered by the prospectus supplement. When a global security
terminates, the depositary, and not we or any applicable trustee, is responsible
for deciding the names of the institutions that will be the initial direct
holders.
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PLAN OF DISTRIBUTION
We may sell the securities being offered hereby in one or more of the
following ways from time to time:
- through agents to the public or to investors;
- to underwriters for resale to the public or to investors; or
- directly to investors.
We will set forth in a prospectus supplement the terms of the offering of
securities, including:
- the name or names of any agents or underwriters;
- the purchase price of the securities being offered and the proceeds we
will receive from the sale;
- any over-allotment options under which underwriters may purchase
additional securities from us;
- any agency fees or underwriting discounts and other items constituting
agents' or underwriters' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers;
and
- any securities exchanges on which such securities may be listed.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment or to sell securities on a
continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if they purchase any of the securities of that series. We may change
from time to time any initial public offering price and any discounts or
concessions the underwriters allow or reallow or pay to dealers. We may use
underwriters with whom we have a material relationship. We will describe in the
prospectus supplement naming the underwriter the nature of any such
relationship.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and
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any profit on their resale of the securities may be treated as underwriting
discounts and commissions under the Securities Act. We will identify in the
applicable prospectus supplement any underwriters, dealers or agents and will
describe their compensation. We may have agreements with the underwriters,
dealers and agents to indemnify them against specified civil liabilities,
including liabilities under the Securities Act. Underwriters, dealers and agents
may engage in transactions with or perform services for us or our subsidiaries
in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than our common stock, which is listed on the Nasdaq National
Market. We may elect to list any other class or series of securities on any
exchange, but we are not obligated to do so. It is possible that one or more
underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. We cannot give any assurance as to the
liquidity of the trading market for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing
transactions permit bids to purchase the underlying security so long as the
stabilizing bids do not exceed a specified maximum. Short covering transactions
involve purchases of the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the underwriters to
reclaim a selling concession from a dealer when the securities originally sold
by the dealer are purchased in a covering transaction to cover short positions.
Those activities may cause the price of the securities to be higher than it
would otherwise be. If commenced, the underwriters may discontinue any of the
activities at any time.
PASSIVE MARKET MAKING
Any underwriters who are qualified market makers on the Nasdaq National
Market may engage in passive market making transactions in the securities on the
Nasdaq National Market in accordance with Rule 103 of Regulation M, during the
business day prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market
makers. In general, a passive market maker must display its bid at a price not
in excess of the highest independent bid for the security; if all independent
bids are lowered below the passive market maker's bid, however, the passive
market maker's bid then must be lowered when certain purchase limits are
exceeded.
VALIDITY OF SECURITIES
The validity of the securities offered hereby will be passed upon for us by
Hale and Dorr LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K of Akamai Technologies, Inc. for the
year ended December 31, 1999 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts on auditing and accounting.
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Ernst & Young, LLP, independent auditors, have audited the consolidated
financial statements of InterVU Inc. as of December 31, 1999 and 1998 and for
each of the three years in the period ended December 31, 1999, as set forth in
their report, which is incorporated by reference in this prospectus and
elsewhere in the registration statement. The consolidated financial statements
of InterVU Inc. are incorporated by reference in reliance on Ernst & Young LLP's
report, given on their authority as experts in accounting and auditing.
The financial statements of Network24 Communciations, Inc. as of December
31, 1999 and 1998 and for each of the two years in the period ended December 31,
1999 incorporated in this Prospectus by reference to the Current Reports on Form
8-K of Akamai Technologies, Inc. have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts on auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other documents with the Securities
and Exchange Commission. You may read and copy any document we file with the SEC
at the public reference facilities the SEC maintains at:
Room 1024, Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
and at the SEC's Regional Offices located at:
Northwestern Atrium Center
Suite 1400
500 West Madison Street
Chicago, Illinois 60661
and
Seven World Trade Center
13th Floor
New York, New York 10048
and you may also obtain copies of these materials by mail from the Public
Reference Section of the SEC at:
450 Fifth Street, N.W.
Washington, D.C. 20549
at prescribed rates. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms.
The SEC also maintains a Web site, the address of which is
http://www.sec.gov. That site also contains our annual, quarterly and special
reports, proxy statements, information statements and other information.
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 the securities, including exhibits and schedules. You can
obtain a copy of the registration statement from the SEC at any address listed
above or from the SEC's Web site.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows 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. Any information that we incorporate by reference is considered part
of this prospectus. The documents and reports that we list below are
incorporated by reference into this prospectus. In addition, all documents and
reports which we file pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act after the date of this prospectus are incorporated by
reference in this prospectus as of the respective filing dates of these
documents and reports. Statements contained in documents that we file with the
SEC and that are incorporated by reference in this prospectus will automatically
update and supersede information contained in this prospectus, including
information in previously filed documents or reports that have been incorporated
by reference in this prospectus, to the extent the new information differs from
or is inconsistent with the old information.
We have filed the following documents with the SEC. These documents are
incorporated herein by reference as of their respective dates of filing:
(1) Our Annual Report on Form 10-K for the year ended December 31,
1999;
(2) Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2000, June 30, 2000 and September 30, 2000;
(3) Our Current Reports on Form 8-K filed on (a) February 8, 2000, as
amended on March 3, 2000, (b) May 5, 2000, as amended on May 24,
2000, and (c) June 27, 2000;
(4) The description of our common stock contained in our Registration
Statement on Form 8-A declared effective on October 28, 1999; and
(5) Pages F-1 through F-9 of the prospectus included in our Post-
effective Amendment to Form S-1 on a Registration Statement on
Form S-3 (File No. 333-45696) filed on December 1, 2000.
You may request a copy of these documents, which will be provided to you at
no cost, by contacting:
Akamai Technologies
500 Technology Square
Cambridge, MA 02139
Attention: Kathryn Jorden Meyer
Telephone: (617) 250-3000
You should rely only on the information contained in this prospectus,
including information incorporated by reference as described above, or any
prospectus supplement or that we have specifically referred you to. We have not
authorized anyone else to provide you with different information. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents or
that any document incorporated by reference is accurate as of any date other
than its filing date. You should not consider this prospectus to be an offer or
solicitation relating to the securities in any jurisdiction in which such an
offer or solicitation relating to the securities is not authorized. Furthermore,
you should not consider this prospectus to be an offer or solicitation relating
to the securities if the person making the offer or solicitation is not
qualified to do so, or if it is unlawful for you to receive such an offer or
solicitation.
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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 registration of the securities being registered hereby, all
of which will be borne by Akamai. All amounts shown are estimates except the SEC
registration fee.
SEC registration fee . . ....................... $125,000
Printing and engraving expenses................. 75,000
Legal fees and expenses......................... 100,000
Accounting fees and expenses.................... 50,000
Miscellaneous................................... 50,000
--------
Total expenses......................... $400,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article SEVENTH of our Amended and Restated Certificate of Incorporation
provides that no director of our company 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.
Article EIGHTH of our Certificate of Incorporation provides that a director
or officer of our company (a) shall be indemnified by us 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 our company) brought against him by virtue of
his position as a director or officer of our company if he acted in good faith
and in a manner he reasonably believed to be in, or not opposed to, the best
interests of our company, 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 our company against all expenses (including attorneys'
fees) and amounts paid in settlement incurred in connection with any action by
or in the right of our company brought against him by virtue of his position as
a director or officer of our company if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of our
company, 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 us, 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 us
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 we determine that the
applicable standard of conduct required for indemnification has not been met. In
the event of a determination by us that the director or officer did not meet the
applicable standard of conduct required for indemnification, or if we fail 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 us notice of the action for which indemnity is
sought and we have the right to participate in such action or assume the defense
thereof.
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<PAGE> 32
Article Eighth of our 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 we must indemnify those
persons to the fullest extent permitted by such law as so amended.
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.
We maintain a general liability insurance policy which covers certain
liabilities of directors and officers of our company arising out of claims based
on acts or omissions in their capacities as directors or officers.
In the underwriting agreements the underwriters will agree to indemnify,
under certain conditions, us, our directors, certain of our officers and persons
who control us within the meaning of the Securities Act, against certain
liabilities.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT DESCRIPTION
NUMBER
1.1 The form of equity underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
1.2 The form of debt underwriting agreement will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
3.1* Amended and Restated Certificate of Incorporation of the
Registrant
3.2** Amended and Restated By-Laws of the Registrant
4.1 Form of senior indenture
4.2 Form of subordinated indenture
4.3* Specimen common stock certificate
4.4 The form of any senior note with respect to each particular
series of senior notes issued hereunder will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference
4.5 The form of any subordinated note with respect to each particular
series of subordinated notes issued hereunder will be filed as an
exhibit to a Current Report on the Registrant of Form 8-K and
incorporated hereby by reference
4.6 The form of any certificate of designation with respect to any
preferred stock issued hereunder and the related form of
preferred stock certificate will be filed as exhibits to a
Current Report of the Registrant on Form 8-K and incorporated
herein by reference
5.1 Opinion of Hale and Dorr LLP
12.1 Statement of Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5 of this Registration Statement)
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<PAGE> 33
25.1 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Senior Indenture will be incorporated herein by reference from a
subsequent filing in accordance with Section 305(b)(2) of the
Trust Indenture Act of 1939
25.2 The Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of the Trustee under the
Subordinated Indenture will be incorporated herein by reference
from a subsequent filing in accordance with Section 305(b)(2) of
the Trust Indenture Act of 1939
99.1 Financial Statements from pages F-1 through F-9 of the Post-
effective Amendment to Form S-1 on a Registration Statement
on Form S-3 (File No. 333-45696)
* Incorporated by reference to the Registrant's Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission on August 14, 2000.
** 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 21, 1999.
ITEM 17. UNDERTAKINGS.
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 this 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 this
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 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 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 this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the 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.
The 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 Securities Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
II-3
<PAGE> 34
pursuant to Section 15(d) of the Securities Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof.
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 indemnification provisions described herein, 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 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.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under Subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-4
<PAGE> 35
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 January
18, 2001.
AKAMAI TECHNOLOGIES, INC.
By: /s/ Kathryn Jorden Meyer
------------------------------------
Kathryn Jorden Meyer
Vice President, General Counsel, and
Secretary
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Akamai Technologies, Inc.,
hereby severally constitute and appoint Paul Sagan, Timothy Weller and Kathryn
Jorden Meyer 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 pre-effective and post-effective amendments to
said Registration Statement and any subsequent registration statement filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to
file the same with all exhibits thereto, and the other documents in connection
therewith, with the Securities and Exchange Commission, 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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ George H. Conrades
---------------------------- Chairman and Chief Executive Officer January 18, 2001
George H. Conrades (Principal Executive Officer)
/s/ Timothy Weller
---------------------------- Chief Financial Officer and Treasurer January 18, 2001
Timothy Weller (Principal Financial Officer)
/s/ Karen C. Stumcke
---------------------------- Vice President and Chief Accounting Officer January 18, 2001
Karen C. Stumcke (Principal Accounting Officer)
/s/ Arthur H. Bilger Director January 18, 2001
----------------------------
Arthur H. Bilger
/s/ Todd A. Dagres Director January 18, 2001
----------------------------
Todd A. Dagres
/s/ F. Thomson Leighton Director January 18, 2001
----------------------------
F. Thomson Leighton
</TABLE>
II-5
<PAGE> 36
<TABLE>
<S> <C> <C>
/s/ Daniel M. Lewin Director January 18,2001
----------------------------
Daniel M. Lewin
Director
----------------------------
Terrance G. McGuire
/s/ Edward W. Scott Director January 18, 2001
----------------------------
Edward W. Scott
</TABLE>
II-6
