Exhibit 10.13
LIMELIGHT NETWORKS, INC.
XXXXX XXXXXXXX EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of March 27,
2007 (the "Effective Date"), by and between Limelight Networks, Inc. (the
"Company") and Xxxxx Xxxxxxxx ("Executive").
1. Duties and Scope of Employment.
(a) Positions and Duties. On the Effective Date, Executive will
commence service as the Company's Senior Vice President, Sales and Marketing.
Executive will report to the Company's Chief Executive Officer (the "CEO"). As
of the Effective Date, Executive will render such business and professional
services in the performance of his duties, consistent with Executive's position
within the Company, as will reasonably be assigned to him by the CEO. The period
Executive is employed by the Company under this Agreement is referred to herein
as the "Employment Term."
(b) Obligations. During the Employment Term, Executive, except as
provided in this Agreement, will devote Executive's full business efforts and
time to the Company and will use good faith efforts to discharge Executive's
obligations under this Agreement to the best of Executive's ability and in
accordance with each of the Company's written corporate guidance and ethics
guidelines, conflict of interests policies and code of conduct as the Company
may adopt from time to time. For the duration of the Employment Term, Executive
agrees not to actively engage in any other employment, occupation, or consulting
activity for any direct or indirect remuneration without the prior approval of
the CEO (which approval will not be unreasonably withheld); provided, however,
that Executive may, without the approval of the CEO, serve in any capacity with
any civic, educational, professional, industry or charitable organization,
provided such services do not interfere with Executive's obligations to the
Company.
(i) Executive hereby represents, warrants and covenants to the
Company that as of the Effective Date, Executive will not be a party to any
contract, understanding, agreement or policy, written or otherwise, that will be
breached by Executive's entering into, or performing services under, this
Agreement. Executive further represents that he has disclosed to the Company in
writing all threatened, pending, or actual claims that are unresolved and still
outstanding as of the Effective Date, in each case, against Executive of which
he is aware, if any, as a result of his employment with any previous employer or
his membership on any boards of directors.
(c) Other Entities. Executive agrees to serve if appointed, without
additional compensation, as an officer and director for each of the Company's
subsidiaries, partnerships, joint ventures, limited liability companies and
other affiliates, including entities in which the Company has a significant
investment as determined by the Company. As used in this
Agreement, the term "affiliates" will mean any entity controlled by,
controlling, or under common control of the Company.
2. At-Will Employment. Executive and the Company agree that Executive's
employment with the Company constitutes "at-will" employment. Executive and the
Company acknowledge that this employment relationship may be terminated at any
time, upon written notice to the other party, with or without good cause or for
any or no cause, at the option either of the Company or Executive. However, as
described in this Agreement, Executive may be entitled to severance benefits
depending upon the circumstances of Executive's termination of employment.
3. Compensation.
(a) Base Salary. Commencing with the Effective Date, the Company will
pay Executive an annual salary of $250,000 as compensation for his services
(such annual salary, as is then effective, to be referred to herein as "Base
Salary"). Executive's Base Salary will be subject to annual review (subject to
the provisions of Section 10(e)(iii) of this Agreement). The Base Salary will be
paid periodically in accordance with the Company's normal payroll practices and
will be subject to the usual, required withholdings.
(b) Annual Incentive. Executive will be eligible to receive annual
cash incentives payable for the achievement of performance goals (i) established
by the Board of Directors of the Company (the "Board") or by the Compensation
Committee of the Board (the "Committee") and (ii) reasonably acceptable to
Executive. During calendar year 2007, Executive's target annual incentive
("Target Annual Incentive") will be $200,000. The actual earned annual cash
incentive, if any, payable to Executive for any performance period will depend
upon the extent to which the applicable performance goal(s) specified by the
Committee with the input of Executive are achieved.
(c) Equity Awards.
(i) On the Effective Date, the Company will issue to Executive an
option to purchase 300,000 shares of Common Stock at a per share exercise price
equal to the fair market value on the Effective Date, as determined by an
independent valuation dated not more than 30 days prior to the Effective Date
(the "Initial Grant"). The Initial Grant will be granted under and subject to
the terms, definitions and provisions of the Company's Amended and Restated 2003
Incentive Compensation Plan (the "Plan"). One forty-eighth (1/48th) of the total
number of shares of Common Stock subject to the Initial Grant shall vest and
become exercisable on the same day as the Effective Date of each calendar month,
provided that the Continuous Service (as such term is defined in the Plan) of
the Executive continues through and on such date. Except as provided in this
Agreement, the Initial Grant will be subject to the Company's standard terms and
conditions under the Plan.
(ii) On the Effective Date, the Company will also issue to
Executive an option to purchase 125,000 shares of Common Stock at a per share
exercise price equal to $18.00 per share (the "$18.00 Option"). The $18.00
Option will be granted under and subject to the terms, definitions and
provisions of the Plan. One forty-eighth (1/48th) of the total number of
-2-
shares of Common Stock subject to the $18.00 Option shall vest and become
exercisable on the same day as the Effective Date of each calendar month
thereafter, provided that the Continuous Service (as such term is defined in the
Plan) of the Executive continues through and on such date. Except as provided in
this Agreement, the $18.00 Option will be subject to the Company's standard
terms and conditions for options granted under the Plan.
(iii) On the Effective Date, the Company will also issue to
Executive an option to purchase 25,000 shares of Common Stock at a per share
exercise price equal to $18.00 per share (the "Bookings Option"). In the event
the Company enters into a customer contract with any company listed in Exhibit B
hereto with minimum annual revenue to the Company of $5,000,000, 100% of the
shares subject to the Bookings Option shall vest and become exercisable. In the
event Executive's employment is terminated for any reason prior to this
condition being met, or in the event the ten year maximum life of the option is
reached and this condition remains unsatisfied, the Bookings Option will expire
unvested and unexercisable. Additional companies, other than existing customers
of the Company, shall be added to Exhibit B within 30 days after the Effective
Date until at least 10 companies are listed. Such additional companies shall be
selected by mutual agreement between Executive and the Company, subject to
approval by the Committee (which shall not be unreasonably withheld). Except as
provided in this Agreement, the Bookings Option will be subject to the Company's
standard terms and conditions for options granted under the Plan.
(iv) In the event that the Company consummates a Change of
Control transaction, 50% of Executive's then outstanding unvested equity awards,
excluding any unvested shares subject to the Bookings Option, will vest.
4. Employee Benefits.
(a) Generally. Executive will be eligible to participate in accordance
with the terms of all Company employee benefit plans, policies and arrangements
that are applicable to other executive officers of the Company, as such plans,
policies and arrangements may exist from time to time.
(b) Vacation. Executive will be entitled to receive paid annual
vacation in accordance with Company policy for other senior executive officers,
but with vacation accrual of not less than four (4) weeks per year.
5. Expenses. The Company will reimburse Executive for reasonable travel,
entertainment and other expenses incurred by Executive in the furtherance of the
performance of Executive's duties hereunder, in accordance with the Company's
expense reimbursement policy as in effect from time to time. In addition, the
Company shall reimburse Executive for up to $5,000 for his expenses in engaging
legal counsel to review this Agreement on his behalf. The Company will also
reimburse Executive for reasonable expenses actually incurred for periodic
travel between the Phoenix area and San Francisco in the furtherance of the
performance of Executive's duties hereunder.
6. Termination of Employment. In the event Executive's employment with the
Company terminates for any reason, Executive will be entitled to any (a) unpaid
Base Salary
-3-
accrued up to the effective date of termination; (b) unpaid, but earned and
accrued annual incentive for any completed fiscal year as of his termination of
employment; (c) pay for accrued but unused vacation; (d) benefits or
compensation as provided under the terms of any employee benefit and
compensation agreements or plans applicable to Executive; (e) unreimbursed
business expenses required to be reimbursed to Executive; and (f) rights to
indemnification Executive may have under the Company's Certificate of
Incorporation, Bylaws, this Agreement, and/or separate indemnification
agreement, as applicable. In the event Executive's employment with the Company
terminates for any reason (other than Cause), Executive will be entitled to
exercise any vested outstanding stock options for at least twenty-four (24)
months after the later of such termination of employment or the date upon which
Executive ceases to provide any other services to the Company or any of its
affiliates, whether as a director, independent contractor or otherwise, but in
no event later than the applicable scheduled expiration date of such award (in
the absence of any termination of employment) as set forth in the award
agreement. For purposes of clarity, the term "expiration date" shall be the
scheduled expiration of the option agreement and not the period that Executive
shall be entitled to exercise such option. In addition, if the termination is by
the Company without Cause or Executive resigns for Good Reason, Executive will
be entitled to the amounts and benefits specified in Section 7.
7. Severance.
(a) Termination Without Cause or Resignation for Good Reason other
than in Connection with a Change of Control. If Executive's employment is
terminated by the Company without Cause or if Executive resigns for Good Reason,
and such termination is not in Connection with a Change of Control, then,
subject to Section 8, Executive will receive: (i) continued payment of
Executive's Base Salary (subject to applicable tax withholdings) for twelve (12)
months, such amounts to be paid in accordance with the Company's normal payroll
policies; (ii) the current year's Target Annual Incentive pro-rated to the date
of termination, with such pro-rated amount to be calculated by multiplying the
current year's Target Annual Incentive by a fraction with a numerator equal to
the number of days inclusive between the start of the current calendar year and
the date of termination and a denominator equal to 365, such amounts to be paid
at the same time as similar bonus payments are made to the Company's other
executive officers; (iii) reimbursement for premiums paid for continued health
benefits for Executive (and any eligible dependents) under the Company's health
plans until the earlier of (A) twelve (12) months, payable when such premiums
are due (provided Executive validly elects to continue coverage under the
Consolidated Omnibus Budget Reconciliation Act ("COBRA")), or (B) the date upon
which Executive and Executive's eligible dependents become covered under similar
plans; and (iv) if such termination occurs prior to the one year anniversary of
the Effective Date, 50,000 of Executive's unvested options under the Initial
Grant shall vest.
(b) Termination Without Cause or Resignation for Good Reason in
Connection with a Change of Control. If Executive's employment is terminated by
the Company without Cause or by Executive for Good Reason, and the termination
is in Connection with a Change of Control, then, subject to Section 8, Executive
will receive: (i) continued payment of Executive's Base Salary for the year in
which the termination occurs (subject to applicable tax withholdings), for
twelve (12) months, such amounts to be paid in accordance with the Company's
normal payroll policies; (ii) the payment in an amount equal to 100% of
Executive's Target Annual Incentive for the year in which the termination occurs
(subject to applicable tax
-4-
withholdings), such amounts to be paid in accordance with the Company's normal
payroll policies over the course of twelve (12) months; (iii) 100% of
Executive's then outstanding unvested equity awards, except those that remain
unvested subject to the Bookings Option, will vest, and (iv) reimbursement for
premiums paid for continued health benefits for Executive (and any eligible
dependents) under the Company's health plans until the earlier of (A) twelve
(12) months, payable when such premiums are due (provided Executive validly
elects to continue coverage under COBRA), or (B) the date upon which Executive
and Executive's eligible dependents become covered under similar plans.
(c) Voluntary Termination Without Good Reason or Termination for
Cause. If Executive's employment is terminated voluntarily (excluding a
termination for Good Reason) or is terminated for Cause by the Company, then,
except as provided in Section 6, (i) all further vesting of Executive's
outstanding equity awards will terminate immediately; (ii) all payments of
compensation by the Company to Executive hereunder will terminate immediately,
and (iii) Executive will be eligible for severance benefits only in accordance
with the Company's then established plans. In the event that Executive's
employment is terminated due to death or Disability, twenty-five percent (25%)
of Executive's then unvested options, excluding any unvested shares subject to
the Bookings Option, shall vest.
8. Conditions to Receipt of Severance: No Duty to Mitigate.
(a) Separation Agreement and Release of Claims. The receipt of any
severance or other benefits pursuant to Section 7 will be subject to Executive
signing and not revoking a separation agreement and release of claims in a form
reasonably acceptable to the Company. Such agreement shall not require Executive
to release claims to the indemnification contemplated by Section 11. No
severance or other benefits pursuant to Section 7 will be paid or provided until
the separation agreement and release agreement becomes effective.
(b) Non-solicitation and Non-competition. The receipt of any severance
or other benefits pursuant to Section 7 will be subject to Executive agreeing
that during the Employment Term and for twenty-four (24) months thereafter,
Executive will not (i) solicit any employee of the Company (other than
Executive's personal assistant) for employment other than at the Company, or
(ii) directly or indirectly engage in, have any ownership interest in or
participate in any entity that as of the date of termination competes with the
Company in any substantial business of the Company or any business reasonably
expected to, become a substantial business of the Company. If Executive violates
this Section 8(b), the Company's sole form of recourse will be to terminate any
future payments or benefits owed to Executive pursuant to Section 7 of this
Agreement. Executive's passive ownership of not more than 1% of any publicly
traded company and/or 5% ownership of any privately held company will not
constitute a breach of this Section 8(b). Public solicitation, such as by taking
out ads in a newspaper, advertising on the web and the like, not specifically
aimed at employees of the Company, will not constitute a breach of this Section
8(b). Clause (ii) of this Subsection (b) shall not preclude Executive from being
employed by an entity with multiple separate business units, as long as the
business unit in which Executive is employed does not compete with the Company
in any substantial business of the Company, or any business reasonably expected
to become a substantial business of the Company, as of the date of the
termination of Executive's employment with the Company.
-5-
(c) Nondisparagement. During the Employment Term and Continuance
Period, Executive and the Company in its official communications will not
knowingly and materially disparage, criticize, or otherwise make any derogatory
statements regarding the other. The Company will instruct its officers and
directors to not knowingly and materially disparage, criticize, or otherwise
make any derogatory statements regarding Executive. Notwithstanding the
foregoing, nothing contained in this agreement will be deemed to restrict
Executive, the Company or any of the Company's current or former officers and/or
directors from providing factual information to any governmental or regulatory
agency (or in any way limit the content of any such information) to the extent
they are requested or required to provide such information pursuant to
applicable law or regulation.
(d) Other Requirements. Executive's receipt of continued severance
payments pursuant to Section 7 will be subject to Executive continuing to comply
with the terms of the Confidential Information Agreement and the provisions of
this Section 8.
(e) No Duty to Mitigate. Executive will not be required to mitigate
the amount of any payment contemplated by this Agreement, nor will any earnings
that Executive may receive from any other source reduce any such payment.
9. Excise Tax. In the event that the benefits provided for in this
Agreement constitute "parachute payments" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") and will be subject
to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then
Executive's severance benefits payable under the terms of this Agreement will
be, at Executive's option, either (a) delivered in full, or (b) delivered as to
such lesser extent which would result in no portion of such severance benefits
being subject to the Excise Tax, WHICHEVER OF THE FOREGOING AMOUNTS, TAKING INTO
ACCOUNT THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME TAXES AND THE EXCISE TAX,
RESULTS IN THE RECEIPT BY EXECUTIVE ON AN AFTER-TAX BASIS, OF THE GREATEST
AMOUNT OF SEVERANCE BENEFITS.
10. Definitions.
(a) Cause, For purposes of this Agreement, "Cause" will mean:
(i) Acts or omissions constituting gross negligence, recklessness
or willful misconduct on the part of Executive with respect to Executive's
obligations under this Agreement or otherwise relating to the business of
Company;
(ii) Any act of personal dishonesty taken by Executive in
connection with his responsibilities as an employee of the Company with the
intention or reasonable expectation that such action may result in the
substantial personal enrichment of Executive;
(iii) Executive's conviction of, or plea of nolo contendere to, a
felony that the Board reasonably believes has had or will have a material
detrimental effect on the Company's reputation or business;
(iv) A breach of any fiduciary duty owed to the Company by
Executive that has a material detrimental effect on the Company's reputation or
business;
-6-
(v) Executive being found liable in any Securities and Exchange
Commission or other civil or criminal securities law action or entering any
cease and desist order with respect to such action (regardless of whether or not
Executive admits or denies liability);
(vi) Executive (A) obstructing or impeding; (B) endeavoring to
obstruct, impede or improperly influence, or (C) failing to materially cooperate
with, any investigation authorized by the Board or any governmental or
self-regulatory entity (an "Investigation"). However, Executive's failure to
waive attorney-client privilege relating to communications with Executive's own
attorney in connection with an Investigation will not constitute "Cause";
(vii) Executive's disqualification or bar by any governmental or
self-regulatory authority from serving in the capacity contemplated by this
Agreement or Executive's loss of any governmental or self-regulatory license
that is reasonably necessary for Executive to perform his responsibilities to
the Company under this Agreement, if (A) the disqualification, bar or loss
continues for more than thirty (30) days, and (B) during that period the Company
uses its good faith efforts to cause the disqualification or bar to be lifted or
the license replaced. While any disqualification, bar or loss continues during
Executive's employment, Executive will serve in the capacity contemplated by
this Agreement to whatever extent legally permissible and, if Executive's
employment is not permissible, Executive will be placed on leave (which will be
paid to the extent legally permissible).
(b) Change of Control. For purposes of this Agreement, "Change of
Control" will mean the occurrence of any of the following events:
(i) The consummation by the Company of a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 50% of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation;
(ii) The approval by the stockholders of the Company, or if
stockholder approval is not required, approval by the Board, of a plan of
complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets;
(iii) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended), other than Xxxxxxx
Xxxxx and its related funds and entities, becoming the "beneficial owner" (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities of
the Company representing 50% or more of the total voting power represented by
the Company's then outstanding voting securities.
(c) Continuance Period. For purposes of this Agreement, "Continuance
Period" will mean the period of time beginning on the date of the termination of
Executive's
-7-
employment and ending on the date on which Executive is no longer receiving Base
Salary payments under Section 7.
(d) Disability. For purposes of this Agreement, "Disability" will mean
Executive's absence from his responsibilities with the Company on a full-time
basis for 120 calendar days in any consecutive twelve (12) month period as a
result of Executive's mental or physical illness or injury.
(e) Good Reason. For purposes of this Agreement, "Good Reason" means
the occurrence of any of the following, without Executive's express written
consent:
(i) An adverse change in Executive's title or reporting
relationship, or a significant reduction of Executive's duties, position, or
responsibilities, relative to Executive's duties, position, or responsibilities
in effect immediately prior to such reduction;
(ii) A material reduction in the kind or level of employee
benefits to which Executive is entitled immediately prior to such reduction with
the result that Executive's overall benefits package is significantly reduced.
Notwithstanding the foregoing, a one-time reduction that also is applied to
substantially all other executive officers of the Company and that reduces the
level of employee benefits by a percentage reduction of 10% or less will not
constitute "Good Reason";
(iii) A reduction in Executive's Base Salary or Target Annual
Incentive as in effect immediately prior to such reduction. Notwithstanding the
foregoing, a one-time reduction that also is applied to substantially all other
executive officers of the Company and which one-time reduction reduces the Base
Salary or Target Annual Incentive by a percentage reduction of 10% or less in
the aggregate will not constitute "Good Reason";
(iv) The relocation of Executive to a facility or location more
than thirty (30) miles from San Francisco, California;
(v) Any material breach by the Company of any material
contractual obligation owed Executive which breach is not remedied within thirty
(30) days of written notice; or
(vi) The failure of the Company to obtain the assumption of this
Agreement by a successor.
(f) In Connection with a Change of Control. For purposes of this
Agreement, a termination of Executive's employment with the Company is "in
Connection with a Change of Control" if Executive's employment is terminated
within three (3) months prior the execution of an agreement that results in a
Change of Control or twelve (12) months following a Change of Control.
11. Indemnification. Subject to applicable law, Executive will be provided
indemnification to the maximum extent permitted by statute, the Company's
Certificate of Incorporation or Bylaws or any written indemnification agreement
between Executive and the Company, including, if applicable, any directors and
officers insurance policies, with such
-8-
indemnification to be on terms determined by the Board or any of its committees,
but on terms no less favorable than provided to any other Company executive
officer or director and subject to the terms of any separate written
indemnification agreement.
12. Confidential Information. Executive will execute the form of
Employment, Confidential Information and Invention Assignment Agreement,
appended hereto as Exhibit A (the "Confidential Information Agreement"). In the
event of any inconsistency between the terms of this Agreement and the terms of
the Confidential Information Agreement, this Agreement will prevail.
13. Assignment. This Agreement will be binding upon and inure to the
benefit of (a) the heirs, executors and legal representatives of Executive upon
Executive's death, and (b) any successor of the Company. Any such successor of
the Company will be deemed substituted for the Company under the terms of this
Agreement for all purposes. For this purpose, "successor" means any person,
firm, corporation, or other business entity which at any time, whether by
purchase, merger, or otherwise, directly or indirectly acquires all or
substantially all of the assets or business of the Company; provided that for
purposes of Section 8(b), "successor" shall not include a direct or indirect
parent corporation of the Company. None of the rights of Executive to receive
any form of compensation payable pursuant to this Agreement may be assigned or
transferred except by will or the laws of descent and distribution. Any other
attempted assignment, transfer, conveyance, or other disposition of Executive's
right to compensation or other benefits will be null and void. This Section 13
will in no way prevent Executive from transferring any vested property he owns.
14. Notices. All notices, requests, demands and other communications called
for hereunder will be in writing and will be deemed given (a) on the date of
delivery if delivered personally; (b) one (1) day after being sent overnight by
a well-established commercial overnight service, or (c) four (4) days after
being mailed by registered or certified mail, return receipt requested, prepaid
and addressed to the parties or their successors at the following addresses, or
at such other addresses as the parties may later designate in writing:
If to the Company:
0000 X 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
If to Executive:
at the last residential address known by the Company.
15. Severability. If any provision hereof becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable, or void, this Agreement
will continue in full force and effect without said provision.
16. Arbitration. The parties agree that any and all disputes arising out of
the terms of this Agreement, Executive's employment by the Company, Executive's
service as an officer or director of the Company, or Executive's compensation
and benefits, their interpretation and any of the matters herein released, will
be subject to binding arbitration. In the event of a dispute, the
-9-
parties (or their legal representatives) will promptly confer to select a single
Arbitrator mutually acceptable to both parties. If the parties cannot agree on
an Arbitrator, then the moving party may file a Demand for Arbitration with the
American Arbitration Association ("AAA") in Phoenix, Arizona, who will be
selected and appointed consistent with the AAA-Employment Dispute Resolution
Rules. Any arbitration will be conducted in a manner consistent with AAA
National Rules for the Resolution of Employment Disputes. The Parties further
agree that the prevailing party in any arbitration will be entitled to
injunctive relief in any court of competent jurisdiction to enforce the
arbitration award. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY
DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. This
paragraph will not prevent either party from seeking injunctive relief (or any
other provisional remedy) from any court having jurisdiction over the Parties
and the subject matter of their dispute relating to Executive's obligations
under this Agreement and the Confidential Information Agreement.
17. Integration. This Agreement, together with the Confidential Information
Agreement and the forms of equity award agreements that describe Executive's
outstanding equity awards, represents the entire agreement and understanding
between the parties as to the subject matter herein and supersedes all prior or
contemporaneous agreements whether written or oral. No waiver, alteration, or
modification of any of the provisions of this Agreement will be binding unless
in a writing and signed by duly authorized representatives of the parties
hereto. In entering into this Agreement, no party has relied on or made any
representation, warranty, inducement, promise, or understanding that is not in
this Agreement. To the extent that any provisions of this Agreement conflict
with those of any other agreement to be signed upon Executive's hire, the terms
in this Agreement will prevail.
18. Waiver of Breach. The waiver of a breach of any term or provision of
this Agreement, which must be in writing, will not operate as or be construed to
be a waiver of any other previous or subsequent breach of this Agreement.
19. Survival. The Confidential Information Agreement and the Company's and
Executive's responsibilities under Sections 6, 7, 8 and 11 will survive the
termination of this Agreement.
20. Headings. All captions and Section headings used in this Agreement are
for convenient reference only and do not form a part of this Agreement.
21. Tax Withholding. All payments made pursuant to this Agreement will be
subject to withholding of applicable taxes.
22. Governing Law. This Agreement will be governed by the laws of the state
of Arizona without regard to its conflict of laws provisions.
23. Acknowledgment. Executive acknowledges that he has had the opportunity
to discuss this matter with and obtain advice from his private attorney, has had
sufficient time to, and has carefully read and fully understands all the
provisions of this Agreement, and is knowingly and voluntarily entering into
this Agreement.
-10-
24. Code Section 409A. Notwithstanding anything to the contrary in this
Agreement, if the Company reasonably determines that Section 409A of the Code
will result in the imposition of additional tax related to a payment of any
severance or other benefits otherwise due to Executive on or within the six (6)
month period following Executive's termination or separation from service (as
defined pursuant to said Section 409A), the severance benefits will accrue
during such six (6) month period and will become payable in a lump sum payment
on the date six (6) months and one (1) day following the date of Executive's
termination or separation from service, as the case may be. All subsequent
payments, if any, will be payable as provided in this Agreement. The Company and
Executive agree to work together in good faith to consider amendments to this
Agreement necessary or appropriate to avoid imposition of any additional tax or
income recognition prior to actual payment to Executive under Section 409A of
the Code and any temporary or final Treasury Regulations and Internal Revenue
Service guidance thereunder.
25. Counterparts. This Agreement may be executed in counterparts, and each
counterpart will have the same force and effect as an original and will
constitute an effective, binding agreement on the part of each of the
undersigned.
-11-
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the
case of the Company by a duly authorized officer, as of the day and year written
below.
COMPANY:
LIMELIGHT NETWORKS, INC.
/s/ XXXX XXXXXXXX DATE: MARCH 25, 2007
-------------------------------------
XXXX XXXXXXXX, CHIEF EXECUTIVE
OFFICER
EXECUTIVE
/s/ XXXXX XXXXXXXX DATE: MARCH 27, 2007
-------------------------------------
XXXXX XXXXXXXX
[SIGNATURE PAGE TO XXXXXXXX EMPLOYMENT AGREEMENT]
-12-
