10. SECURITIES REGISTRATION. Within five business days following Stockholder Approval (as defined in the Grant Notice), the Company will file a registration statement under the Securities Act on Form S-8 or another appropriate form for the shares of Common Stock issuable under the Option. The Company will use its reasonable best efforts to maintain the effectiveness of such registration for so long as the Option is outstanding.
11. CHOICE OF LAW. All questions concerning the construction, validity and interpretation of this Option Agreement will be governed by the internal laws of the State of Delaware (the “DGCL”), doeswithout regard to that state’s conflict of laws rules.
12. RESOLUTION OF DISPUTES. Any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Option Agreement or the Option will be resolved as set forth in the Company Arbitration Agreement attached as an exhibit to the Offer Letter, as may be amended from time to time.
13. SEVERABILITY. If any part of this Option Agreement or the Plan (to the extent applicable to this Option) is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity will not invalidate any portion of this Option Agreement or the Plan not declared to be unlawful or invalid. Any section of this Option Agreement or the Plan (or part of such a Section) so declared to be unlawful or invalid will, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
14. OTHER DOCUMENTS. You hereby certify:acknowledge receipt of or the right to receive a document providing the information required by Rule 428(b)(1) promulgated under the Securities Act, which includes the Prospectus. In addition, you acknowledge receipt of the Company’s Insider Trading Policy.
One:
| The name of the corporation is Fastly, Inc. (the “Company”).
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| The original name of the Company is SkyCache, Inc. and the date of filing the original Certificate of Incorporation of the Company with the Secretary of State of the State of Delaware was March 2, 2011. |
| Article IV(D)(1)(d) of the Amended and Restated Certificate of Incorporation of the Company is hereby amended to read in full as follows: |
“(d) “Final Conversion Date” means 5:00 p.m.15. PLAN. The Option has been granted outside of the Plan, but the terms and conditions set forth in New York City, New Yorkthe following Sections of the Plan are applicable to the Option (and for clarity, notwithstanding anything in the Plan to the contrary, no other sections of the Plan will be applicable to the Option):
(a) Section 5(c) of the Plan (regarding the exercise procedure and payment of the exercise price of the Option);
(b) Section 5(e) of the Plan (regarding the transferability of the Option);
(c) Section 5(h) of the Plan (regarding certain restrictions on the earlierexercise of the Option and certain extensions of exercisability of the Option);
(d) Section 9(a) of the Plan (regarding the impact of a Capitalization Adjustment on the Option), provided that in the event of a Capitalization Adjustment, in addition to occur followingany applicable adjustments set forth in Section 9(a) of the IPOPlan, the Board will appropriately and proportionately adjust the 60-Day Price Milestones to avoid diminution or enlargement of the benefits of the Option and its determination shall be final, binding and conclusive;
(e) Section 9(b) of the Plan (regarding the impact of a dissolution or liquidation of the Company on the Option);
(f) Section 9(c) of the Plan (regarding Corporate Transactions), except Section 9(c)(ii) of the Plan;
(g) Section 2 of the Plan (regarding the administration of the Option), except Section 2(b)(xi) of the Plan (regarding actions that are treated as a repricing), and Section 2(d) of the Plan (regarding certain delegations of authority to officer(s) of the Company);
(h) Section 8 of the Plan (regarding certain miscellaneous provisions); and
(i) Section 7 of the Plan (regarding certain covenants of the Company).
For purposes of the foregoing Sections of the Plan, (i) the first trading day falling nine months afterOption will be considered an “Option,” a “Nonstatutory Stock Option” and an “Award”, (ii) this Option Agreement will be considered an “Option Agreement” and an “Award Agreement,” (iii) you will be considered a “Participant,” and (iv) the date on whichOption will be considered to have been granted under the outstanding sharesPlan.
The Option is further subject to all applicable interpretations, amendments, rules and regulations, that may from time to time be promulgated and adopted pursuant to the Plan. In the event of Class B Common Stock represent less than ten percent (10%)any conflict between the provisions of the aggregate number of sharesOption Agreement and the applicable provisions of the then outstanding Class A Common Stock and Class B Common Stock, (ii)Plan, the date specified by affirmative vote of the holders of at least a majority of the outstanding shares of Class B Common Stock, voting as a single class, or (iii) the first trading day falling seven years after the Effective Time.”Option Agreement shall control.
* * * * B-8 | 2023 PROXY STATEMENT
TABLE OF CONTENTS ATTACHMENT II
NOTICE OF EXERCISE 2023 PROXY STATEMENT | B-9
| This Certificate of Amendment to the Amended and Restated Certificate of Incorporation has been duly approved by the Board of Directors of the Company. |
| This Certificate of Amendment to the Amended and Restated Certificate of Incorporation wasapproved by the holders of the requisite number of shares of the Company in accordance with Section 228 of theDGCL. This Certificate of Amendment to the Amended and Restated Certificate of Incorporation has been dulyadopted in accordance with the provisions of Sections 242 and 245 of the DGCL by the stockholders of the Company. |
| All other provisions of the Amended and Restated Certificate of Incorporation shall remain in full forceand effect |
In Witness Whereof, Fastly, Inc.has caused this Certificate of Amendment to the Amended and RestatedCertificate of Incorporation to be signed by its Chief Financial Officer this day of June, 2020.
475 Brannan Street, Suite 300
San Francisco, CA 94107
This constitutes notice to Fastly, Inc. (the “Company”) that I elect to purchase the below number of shares of Common Stock of the Company (the “Shares”) by exercising my Option for the price set forth below. Capitalized terms not explicitly defined in this Notice of Exercise but defined in the Grant Notice, Option Agreement or 2019 Equity Incentive Plan (the “Plan”) shall have the meanings set forth in the Grant Notice, Option Agreement or Plan, as applicable. Use of certain payment methods is subject to Company and/or Committee consent and certain additional requirements set forth in the Option Agreement and the Plan.
| Type of option: | | | Nonstatutory Stock Option | |
| Date of Grant: | | | April 12, 2023 | |
| Number of Shares as to which the Option is exercised: | | | | |
| Certificates to be issued in name of: | | | | |
| Total exercise price: | | | $ | |
| Cash, check, bank draft or money order delivered herewith: | | | $ | |
| Value of Shares delivered herewith: | | | $ | |
| Regulation T Program (cashless exercise) | | | $ | |
| Value of Shares pursuant to net exercise: | | | $ | |
By this exercise, I agree to (i) provide such additional documents as you may require pursuant to the terms of the Plan and (ii) satisfy the tax withholding obligations, if any, relating to the exercise of this Option as set forth in the Option Agreement.
| | | | Very truly yours, | |
| | | | | |
| | | | By:
| | | | |
| | | | | | | Adriel Lares
Chief Financial Officer
| |