UNDERWRITING AGREEMENT

 

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                                                               EXECUTION VERSION

 

 

                                12,000,000 Shares

 

                            AKAMAI TECHNOLOGIES, INC.

 

                                  Common Stock

 

                                 ($0.01 Par Value)

 

 

                             UNDERWRITING AGREEMENT

 

 

                                                                October 31, 2005

 

 

 

Deutsche Bank Securities Inc.

60 Wall Street

New York, NY 10005

 

Ladies and Gentlemen:

 

      Akamai Technologies, Inc., a Delaware corporation (the "Company"),

proposes to sell to Deutsche Bank Securities Inc. (the "Underwriter") an

aggregate of 12,000,000 shares of the Company's Common Stock, $0.01 par value

(the "Firm Shares"). The Company also proposes to sell at the Underwriter's

option an aggregate of up to 1,800,000 additional shares of the Company's Common

Stock (the "Option Shares") as set forth below. The Firm Shares and the Option

Shares, to the extent the aforementioned option is exercised, are collectively

referred to herein as the "Shares."

 

      The Company has filed with the Securities and Exchange Commission (the

"Commission") a registration statement, including a prospectus, on Form S-3

(File No. 333-53906), relating to the Shares. The registration statement as

amended to the date of this Agreement, including the information (if any) deemed

to be part of the registration statement at the time of effectiveness pursuant

to Rule 430A under the Securities Act of 1933, as amended (the "Securities

Act"), is hereinafter referred to as the "Registration Statement," and the

related prospectus covering the Shares in the form contained in the Registration

Statement at the time of effectiveness is hereinafter referred to as the "Base

Prospectus." The Base Prospectus, as supplemented by the prospectus supplement

specifically relating to the Shares in the form first used to confirm sales of

the Shares is hereinafter referred to as the "Prospectus," and the term

"preliminary prospectus" means any preliminary form of the Prospectus. As used

herein, the terms "Registration Statement," "Base Prospectus," "Prospectus" and

"preliminary prospectus" shall include in each case the documents, if any,

incorporated therein by reference. If the Company has filed an abbreviated

registration statement to register additional shares of Common Stock pursuant to

Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),

then any reference herein to the term "Registration Statement" shall be deemed

to include such

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Rule 462 Registration Statement. The terms "supplement," "amendment" or "amend"

as used in this Agreement with respect to the Registration Statement, Base

Prospectus, Prospectus or preliminary prospectus shall include all documents

subsequently filed by the Company with the Commission pursuant to the Securities

Exchange Act of 1934, as amended (the "Exchange Act"), that are deemed to be

incorporated by reference therein.

 

      In consideration of the mutual agreements contained herein and of the

interests of the parties in the transactions contemplated hereby, the parties

hereto agree as follows:

 

      1.     REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

 

            (a) The Company represents and warrants to the Underwriter as

follows:

 

                  (i) At the time the Registration Statement was filed with the

Commission, the Company met the applicable eligibility requirements for use of

Form S-3; the Registration Statement has become effective; no stop order

suspending the effectiveness of the Registration Statement is in effect, and no

proceedings for such purpose are pending before or, to the knowledge of the

Company, threatened by the Commission.

 

                  (ii) (A) Each document, if any, filed or to be filed pursuant

to the Exchange Act and incorporated by reference in the Registration Statement

complied or will comply when so filed in all material respects with the Exchange

Act and the applicable rules and regulations of the Commission thereunder, (B)

the Registration Statement, when it became effective, did not contain and, as

amended or supplemented, if applicable, will not contain any untrue statement of

a material fact or omit to state a material fact required to be stated therein

or necessary to make the statements therein not misleading, (C) the Registration

Statement and the Prospectus comply and, as amended or supplemented, if

applicable, will comply in all material respects with the Securities Act and the

applicable rules and regulations of the Commission thereunder and (D) the

Prospectus does not contain and, as amended or supplemented, if applicable, will

not contain any untrue statement of a material fact or omit to state a material

fact necessary to make the statements therein, in the light of the circumstances

under which they were made, not misleading, provided, however, that the Company

makes no representations or warranties as to information contained in or omitted

from the Registration Statement or the Prospectus, or any such amendment or

supplement, in reliance upon, and in conformity with, written information

furnished to the Company by or on behalf of the Underwriter specifically for use

therein.

 

                  (iii) The Company has been duly organized and is validly

existing as a corporation in good standing under the laws of the State of

Delaware, with corporate power and authority to own or lease its properties and

conduct its business as described in the Prospectus. Each of the subsidiaries of

the Company as listed in Schedule I hereto (collectively, the "Subsidiaries")

has been duly organized and is validly existing under the laws of the

jurisdiction of its organization as an entity of the type specified in such

Schedule I and is in good standing under such laws (to the extent such status

exists under such laws), with corporate or similar power and authority to own or

lease its properties and conduct its business as described in the Prospectus.

The Subsidiaries are the only subsidiaries, direct or indirect, of the Company.

The Company and each

 

 

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of the Subsidiaries are duly qualified to transact business in all jurisdictions

in which the conduct of their business requires such qualification, except for

such jurisdictions where the failure to so qualify would not, individually or in

the aggregate, result in any material adverse change in the business, financial

condition, results of operations or prospects of the Company or its

Subsidiaries, taken together as a whole (a "Material Adverse Change"). The

outstanding shares of capital stock or other ownership interests of each of the

Subsidiaries have been duly authorized and validly issued, are fully paid and

non-assessable (to the extent such status exists under the laws of the

jurisdictions in which the Subsidiaries are organized) and are owned by the

Company or another Subsidiary free and clear of all liens, encumbrances and

equities and claims; and no options, warrants or other rights to purchase,

agreements or other obligations to issue or other rights to convert any

obligations into shares of capital stock or ownership interests in the

Subsidiaries are outstanding.

 

                  (iv) The outstanding shares of Common Stock of the Company

have been duly authorized and validly issued and are fully paid and

non-assessable; the Shares have been duly authorized and when issued and paid

for as contemplated herein will be validly issued, fully paid and

non-assessable; and no preemptive rights of stockholders exist with respect to

any of the Shares or the issue and sale thereof. Neither the filing of the

Registration Statement nor the offering or sale of the Shares as contemplated by

this Agreement gives rise to any rights, other than those which have been waived

or satisfied, for or relating to the registration of any shares of Common Stock

of the Company.

 

                  (v) The information set forth under the caption

"Capitalization" in the Prospectus is true and correct as of the date or dates

indicated. All of the Shares conform to the description thereof contained in the

Prospectus. Except as described in the Prospectus and except as has been granted

under the (i) the Second Amended and Restated 1998 Stock Incentive Plan, (ii)

the 2001 Incentive Stock Option Plan, and (iii) the 1999 Employee Stock Purchase

Plan, , (A) there are no outstanding securities of the Company convertible or

exchangeable into or evidencing the right to purchase or subscribe for any

shares of capital stock of the Company and (B) there are no outstanding or

authorized options, warrants or rights of any character obligating the Company

to issue any shares of its capital stock or any securities convertible or

exchangeable into or evidencing the right to purchase or subscribe for any

shares of such stock.

 

                   (vi) The Commission has not issued an order preventing or

suspending the use of the Prospectus relating to the proposed offering of the

Shares nor instituted, to the Company's knowledge, proceedings for that purpose.

 

                  (vii) The consolidated financial statements of the Company and

the Subsidiaries, together with related notes included in the Registration

Statement and the Prospectus, present fairly in all material respects the

financial position, the results of operations and cash flows of the Company and

the consolidated Subsidiaries, at the indicated dates and for the indicated

periods. Such financial statements have been prepared in accordance with

generally accepted principles of accounting, consistently applied throughout the

periods involved, except as disclosed therein, and all adjustments necessary for

a fair presentation of results for such periods have been made. The summary

financial data included in the Prospectus present fairly, on the basis stated in

the Prospectus, the information shown therein and such data have been compiled

on a basis

 

 

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consistent with the financial statements presented therein and the books and

records of the Company. The pro forma financial statements and other pro forma

financial information included in the Registration Statement and the Prospectus

present fairly the information shown therein, have been prepared in accordance

with the Commission's rules and guidelines with respect to pro forma financial

statements, have been properly compiled on the pro forma bases described

therein, and, in the opinion of the Company, the assumptions used in the

preparation thereof are reasonable and the adjustments used therein are

appropriate to give effect to the transactions or circumstances referred to

therein.

 

                  (viii) To the Company's knowledge after reasonable inquiry,

(a) PricewaterhouseCoopers LLP, who have certified certain of the financial

statements filed with the Commission as part of the Prospectus, are independent

public accountants as required by the Securities Act and the and the applicable

rules and regulations of the Commission thereunder and Rule 3600T of the Public

Company Accounting Oversight Board (the "PCAOB") and (b) BDO Seidman, LLP, who

have certified certain of the financial statements of Speedera Networks, Inc. as

independent certified public accountants with respect to the Company under Rule

101 of the AICPA's Code of Professional Conduct, and its interpretations and

rulings.

 

                  (ix) There is no legal or governmental proceedings pending or,

to the knowledge of the Company, threatened against the Company or any of the

Subsidiaries which if determined adversely to the Company or any of its

Subsidiaries is reasonably likely to result in any Material Adverse Change or

might prevent the consummation of the transactions contemplated hereby, except

as set forth in the Prospectus.

 

                  (x) The Company and the Subsidiaries have good and valid title

to all of the properties and assets reflected in the consolidated financial

statements hereinabove described or described in the Prospectus as owned by

them, subject to no lien, mortgage, pledge, charge or encumbrance of any kind

except those reflected in such financial statements or described in the

Prospectus or which do not materially affect the value of such properties and

assets and do not interfere with the use made and proposed to be made of such

properties and assets by the Company and the Subsidiaries. The Company and the

Subsidiaries occupy their leased real properties under valid and binding leases,

with such exceptions as are not reasonably likely to result in a Material

Adverse Change and do not materially interfere with the use made and proposed to

be made of such properties by the Company and the Subsidiaries, except as

described in the Prospectus.

 

                  (xi) Since the respective dates as of which information is

given in the Prospectus, as it may be amended or supplemented, (i) there has not

occurred any Material Adverse Change or any development that is reasonably

likely to result in a Material Adverse Change, whether or not occurring in the

ordinary course of business, and there has not been any material transaction

entered into, other than transactions in the ordinary course of business and

changes and transactions described in the Prospectus, as it may be amended or

supplemented and (ii) neither the Company nor any Subsidiary has incurred any

material liability, direct or contingent, nor entered into any material

transaction other than in the ordinary course of business.

 

                  (xii) The execution and delivery of this Agreement and the

consummation of the transactions contemplated hereby will not conflict with or

result in a breach of any of the terms or provisions of, or constitute a default

under, any material indenture, mortgage, deed of trust

 

 

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or other agreement or instrument to which the Company or any Subsidiary is a

party or by which the Company or any Subsidiary or any of their respective

properties is bound, or of the Certificate of Incorporation of the Company, as

amended and/or restated (the "Charter") or By-Laws of the Company, as amended

and/or restated (the "By-Laws"), or any law, order, rule or regulation judgment,

order, writ or decree applicable to the Company or any Subsidiary of any court

or of any government, regulatory body or administrative agency or other

governmental body having jurisdiction.

 

                   (xiii) This Agreement has been duly authorized, executed and

delivered by the Company.

 

                  (xiv) Each approval, consent, order, authorization,

designation, declaration or filing by or with any regulatory, administrative or

other governmental body necessary in connection with the execution and delivery

by the Company of this Agreement and the consummation of the transactions herein

contemplated (except for (A) the filing of the Prospectus specifically relating

to the Shares with the Commission, (B) the electronic filing on COBRADesk,

including the filing of the Prospectus and other documents necessary for the

review of the offering of the Shares in accordance with Rule 2710 of the Conduct

Rules of the National Association of Securities Dealers, Inc. (the "NASD") (C)

letter from the NASD confirming that the NASD shall not have raised any

objection with respect to the fairness and reasonableness of the underwriting

terms and arrangements or (D) such additional steps as may be necessary to

qualify the Shares for public offering by the Underwriter under State securities

or Blue Sky laws) has been obtained or made and is in full force and effect.

 

                  (xv) The Company and each of the Subsidiaries possess all

certificates, authorizations and permits issued by the appropriate federal,

state or foreign regulatory authorities necessary to conduct its business, other

than those which, if not so possessed, would not result in a Material Adverse

Change, and neither the Company nor any of its Subsidiaries has received any

notice of proceedings relating to the revocation or modification of any such

certificate, authorization or permit which, singly or in the aggregate, if the

subject of an unfavorable decision, ruling or finding, would result in a

Material Adverse Change, except as described the Prospectus.

 

                  (xvi) The Company and each of the Subsidiaries own or possess,

or believes that it would be able to license on reasonable and customary terms,

all material patents, patent rights, licenses, inventions, copyrights, know-how

(including trade secrets and other unpatented and/or unpatentable proprietary or

confidential information, systems or procedures), trademarks, service marks and

trade names currently employed by it in connection with the business now

operated by it in the manner in which it is conducted, and neither the Company

nor any of its Subsidiaries have received any notice of infringement of, or

conflict with, asserted rights of others with respect to any of the foregoing

which, singly or in the aggregate, if the subject of an unfavorable decision,

ruling or finding, would be reasonably likely to result in a Material Adverse

Change.

 

                  (xvii) Neither the Company, nor to the Company's knowledge,

any of its affiliates, has taken or intends to take, directly or indirectly, any

action designed to cause or result in, or which has constituted or which might

reasonably be expected to constitute, the stabilization or

 

 

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manipulation of the price of the shares of the Company's Common Stock to

facilitate the sale or resale of the Shares. The Company acknowledges that the

Underwriter may engage in passive market making transactions in the Shares on

the Nasdaq National Market in accordance with Regulation M under the Exchange

Act.

 

                  (xviii) Neither the Company nor any Subsidiary is an

"investment company" within the meaning of such term under the Investment

Company Act of 1940, as amended (the "1940 Act") and the rules and regulations

of the Commission thereunder or, after giving effect to the offering and sale of

the Shares contemplated hereunder and the application of the net proceeds from

such sale as described in the Prospectus, will be required to register as an

"investment company" pursuant to the 1940 Act.

 

                  (xix) The Company and each of its Subsidiaries maintains a

system of internal accounting controls sufficient to provide reasonable

assurances that (i) transactions are executed in accordance with management's

general or specific authorization; (ii) transactions are recorded as necessary

to permit preparation of financial statements in conformity with generally

accepted accounting principles and to maintain accountability for assets; (iii)

access to assets is permitted only in accordance with management's general or

specific authorization; and (iv) the recorded accountability for assets is

compared with existing assets at reasonable intervals.

 

                  (xx) The Company is not aware of (i) any significant

deficiencies or material weaknesses in the design or operation of its internal

controls over financial reporting which are reasonably likely to adversely

affect its ability to record, process, summarize and report financial

information or (ii) any fraud, whether or not material, that involves management

or other employees who have a role in the registrant's internal control over

financial reporting. The Company is not aware of any change in its internal

controls over financial reporting that has occurred since the date of the most

recent evaluation of such internal controls that has materially affected, or is

reasonably likely to materially affect, the Company's internal controls over

financial reporting.

 

                   (xxi) The Company and each of its Subsidiaries (i) is in

compliance with any and all applicable foreign, federal, state and local laws

and regulations relating to the protection of human health and safety, the

environment or hazardous or toxic substances or wastes, pollutants or

contaminants (the "Environmental Laws"), (ii) has received all permits, licenses

or other approvals required of it under applicable Environmental Laws to conduct

its business and (iii) is in compliance with all terms and conditions of any

such permit, license or approval, except where such noncompliance with

Environmental Laws, failure to receive required permits, licenses or other

approvals or failure to comply with the terms and conditions of such permits,

licenses or approvals would not, singly or in the aggregate, result in a

Material Adverse Change.

 

 

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                  (xxii) There are no costs or liabilities associated with

Environmental Laws (including, without limitation, any capital or operating

expenditures required for clean-up, closure of properties or compliance with

Environmental Laws or any permit, license or approval, any related constraints

on operating activities and any potential liabilities to third parties) which

would, singly or in the aggregate, result in a Material Adverse Change.

 

                  (xxiii) No material labor dispute with the employees of the

Company or any of its Subsidiaries exists, except as described in the

Prospectus, or, to the knowledge of the Company, is imminent; and the Company is

not aware of any existing, threatened or imminent labor disturbance by the

employees of any of its principal suppliers, manufacturers or contractors that

could result in a Material Adverse Change.

 

                   (xxiv) The Company and each of its Subsidiaries are insured by

the insurers of recognized financial responsibility against such losses and

risks and in such amounts as, in the Company's reasonable judgment, are prudent

and customary in the businesses in which they are engaged; neither the Company

nor any of its Subsidiaries has been refused any insurance coverage sought or

applied for; and neither the Company nor any of its Subsidiaries has any reason

to believe that it will not be able to renew its existing insurance coverage as

and when such coverage expires or to obtain similar coverage from similar

insurers as may be necessary to continue its business at a cost that would not

result in a Material Adverse Change, except as described in the Prospectus.

 

                  (xxv) There are no contracts, agreements or understandings

between the Company and any person granting such person the right to require the

Company to file a registration statement under the Securities Act with respect

to any securities of the Company, except as has been satisfied or waived. No

such contract, agreement or understanding contains a provision requiring the

Company to include such securities with the Shares registered pursuant to the

Registration Statement.

 

                   (xxvi) The Company has established and maintains and evaluates

"disclosure controls and procedures" (as such term is defined in Rule 13a-15 and

15d-15 under the Exchange Act) and "internal control over financial reporting"

(as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such

disclosure controls and procedures are designed to ensure that material

information relating to the Company, including its consolidated Subsidiaries, is

made known to the Company's Chief Executive Officer and its Chief Financial

Officer by others within those entities, and such disclosure controls and

procedures are effective to perform the functions for which they were

established.

 

                  (xxvii) Solely to the extent that the Sarbanes-Oxley Act has

been applicable to the Company, there is and has been no failure on the part of

the Company to comply in all material respects with any provision of the

Sarbanes-Oxley Act. The Company has taken all necessary actions to ensure that

it is in compliance with all provisions of the Sarbanes-Oxley Act that are in

effect and with which the Company is required to comply and is actively taking

steps to ensure that it will be in compliance with other provisions of the

Sarbanes-Oxley Act not currently in effect or which will become applicable to

the Company.

 

                  (xxviii) There are no relationships or related-party

transactions involving the Company or any of its Subsidiaries or any other

person required to be described in the Prospectus which have not been described

as required.

 

      2. Purchase, Sale and Delivery of the Firm Shares and the Option shares.

 

 

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            (a) On the basis of the representations, warranties and covenants

herein contained, and subject to the conditions herein set forth, the Company

agrees to sell to the Underwriter and the Underwriter agrees to purchase, at a

price of $16.855 per Share, the Firm Shares.

 

            (b) Payment for the Firm Shares to be sold hereunder is to be made

in Federal (same day) funds to an account designated by the Company against

delivery of certificates for the account of the Underwriter. Such payment and

delivery are to be made through the facilities of The Depository Trust Company

at 10:00 a.m., New York time, on the third business day after the date of this

Agreement or at such other time and date not later than five business days

thereafter as you and the Company shall agree upon, such time and date being

herein referred to as the "Closing Date." (As used herein, "business day" means

a day on which the New York Stock Exchange is open for trading and on which

banks in New York are open for business and not permitted by law or executive

order to be closed.)

 

            (c) In addition, on the basis of the representations and warranties

herein contained and subject to the terms and conditions herein set forth, the

Company hereby grants an option to the Underwriter to purchase the Option Shares

at the price per Share as set forth in the first paragraph of this Section 2.

The option granted hereby may be exercised in whole or in part by giving written

notice (i) at any time before the Closing Date and (ii) only once thereafter

within 30 days after the date of this Agreement, to the Company, setting forth

the number of Option Shares as to which the Underwriter is exercising the option

and the time and date at which such certificates are to be delivered. The time

and date at which certificates for Option Shares are to be delivered shall be

determined by the Underwriter but shall not be earlier than three nor later than

10 full business days after the exercise of such option, nor in any event prior

to the Closing Date (such time and date being herein referred to as the "Option

Closing Date"). If the date of exercise of the option is three or more days

before the Closing Date, the notice of exercise shall set the Closing Date as

the Option Closing Date. The option with respect to the Option Shares granted

hereunder may be exercised only to cover over-allotments in the sale of the Firm

Shares by the Underwriter. You may cancel such option at any time prior to its

expiration by giving written notice of such cancellation to the Company. To the

extent, if any, that the option is exercised, payment for the Option Shares

shall be made on the Option Closing Date in Federal (same day) funds drawn to

the order of the Company for the Option Shares to be sold by it against delivery

of certificates therefor through the facilities of The Depository Trust Company,

New York, New York.

 

      3.     Offering by the Underwriter.

 

            It is understood that the Underwriter is to make a public offering

of the Firm Shares as soon as the Underwriter deems it advisable to do so. The

Firm Shares are to be initially offered to the public at the offering price set

forth in the Prospectus.

 

      4.     Covenants of the Company.

 

            (a)   The Company covenants and agrees with the Underwriter that:

 

                  (i) The Company will (A) use its best efforts to prepare and

timely file with the Commission under Rule 424(b) of the rules and regulations

of the Commission promulgated

 

 

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pursuant to the Securities Act a Prospectus in a form approved by the

Underwriter containing information previously omitted at the time of

effectiveness of the Registration Statement and (B) not file any amendment to

the Registration Statement or supplement to the Prospectus of which the

Underwriter shall not previously have been advised and furnished with a copy or

to which the Underwriter shall have reasonably objected in writing or which is

not in compliance with the Securities Act and the applicable rules and

regulations of the Commission thereunder.

 

                  (ii) The Company will advise the Underwriter promptly of the

issuance by the Commission of any stop order suspending the effectiveness of the

Registration Statement or the use of the Prospectus or of the institution of any

proceedings for that purpose. The Company will use its reasonable best efforts

to prevent the issuance of any such stop order preventing or suspending the use

of the Prospectus and to obtain as soon as possible the lifting thereof, if

issued.

 

                  (iii) The Company will cooperate with the Underwriter in

endeavoring to qualify the Shares for sale under the securities laws of such

jurisdictions as the Underwriter may reasonably have designated in writing and

will make such applications, file such documents, and furnish such information

as may be reasonably required for that purpose, provided the Company shall not

be required to qualify as a foreign corporation or to file a general consent to

service of process in any jurisdiction where it is not now so qualified or

required to file such a consent. The Company will, from time to time, prepare

and file such statements, reports, and other documents, as are or may be

required to continue such qualifications in effect for so long a period as the

Underwriter may reasonably request for distribution of the Shares.

 

                  (iv) The Company will deliver to, or upon the order of, the

Underwriter, from time to time, as many copies of any preliminary prospectus as

the Underwriter may reasonably request. The Company will deliver to, or upon the

order of, the Underwriter during the period when delivery of a Prospectus is

required under the Securities Act, as many copies of the Prospectus in final

form, or as thereafter amended or supplemented, as the Underwriter may

reasonably request.

 

                  (v) The Company will comply with the Securities Act and the

rules and regulations of the Commission thereunder, and the Exchange Act and the

rules and regulations of the Commission thereunder, so as to permit the

completion of the distribution of the Shares as contemplated in this Agreement

and the Prospectus. If during the period in which a prospectus is required by

the Securities Act to be delivered by the Underwriter or dealer, any event shall

occur as a result of which it becomes necessary to amend or supplement the

Prospectus in order to make the statements therein, in the light of the

circumstances existing at the time the Prospectus is delivered to a purchaser,

not misleading, or, if it is necessary at any time to amend or supplement the

Prospectus to comply with any law, the Company prompt