Indemnification Agreement - Limelight Networks Inc.
LIMELIGHT NETWORKS, INC.
INDEMNIFICATION AGREEMENT
THIS AGREEMENT is entered into, effective as of __________, 2007 by and
between Limelight Networks, Inc., a Delaware corporation (the "Company"), and
__________ ("Indemnitee"), effective as of the date that the Registration
Statement on Form S-1 related to the initial public offering of the Company's
Common Stock is declared effective by the United States Securities and Exchange
Commission.
WHEREAS, it is essential to the Company to retain and attract as directors
and officers the most capable persons available;
WHEREAS, Indemnitee is a director and/or officer of the Company;
WHEREAS, both the Company and Indemnitee recognize the increased risk of
litigation and other claims currently being asserted against directors and
officers of corporations;
WHEREAS, the Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") and Amended and Restated Bylaws (the "Bylaws")
of the Company require the Company to indemnify and advance expenses to its
directors and officers to the fullest extent permitted under Delaware law, and
the Indemnitee has been serving and continues to serve as a director and/or
officer of the Company in part in reliance on the Company's Certificate of
Incorporation and Bylaws; and
WHEREAS, in recognition of Indemnitee's need for (i) substantial protection
against personal liability based on Indemnitee's reliance on the aforesaid
Certificate of Incorporation and Bylaws, (ii) specific contractual assurance
that the protection promised by the Certificate of Incorporation and Bylaws will
be available to Indemnitee (regardless of, among other things, any amendment to
or revocation of the Certificate of Incorporation and Bylaws or any change in
the composition of the Company's Board of Directors or acquisition transaction
relating to the Company) and (iii) an inducement to provide effective services
to the Company as a director and/or officer, the Company wishes to provide in
this Agreement for the indemnification of and the advancing of expenses to
Indemnitee to the fullest extent (whether partial or complete) permitted under
Delaware law and as set forth in this Agreement, and, to the extent insurance is
maintained, to provide for the continued coverage of Indemnitee under the
Company's directors' and officers' liability insurance policies.
NOW, THEREFORE, in consideration of the above premises and of Indemnitee
continuing to serve the Company directly or, at its request, with another
enterprise, and intending to be legally bound hereby, the parties agree as
follows:
1. Certain Definitions:
(a) "Affiliate" shall mean any corporation or other person or
entity that directly, or indirectly through one or more intermediaries, controls
or is controlled by or is under
<PAGE>
common control with, the person specified, including, without limitation, with
respect to the Company, any direct or indirect subsidiary of the Company.
(b) "Board" shall mean the Board of Directors of the Company.
(c) A "Change in Control" shall be deemed to have occurred if (i)
any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (other than a trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or a corporation owned directly or indirectly by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company, and other than any person holding shares of the Company on the date
that the Company first registers under the Securities Act of 1933, as amended,
or any transferee of such individual if such transferee is a spouse or lineal
descendant of the transferee or a trust for the benefit of the individual, his
or her spouse or lineal descendants), is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange 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, (ii) during any
period of two consecutive years, individuals who at the beginning of such period
constitute the Board and any new director whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to constitute a
majority of the Board, (iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other entity, other than a merger or
consolidation that 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) at least 80% of the total voting power represented by the
Voting Securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company (in one transaction or a series of
transactions) of all or substantially all of the Company's assets.
(d) "Expenses" shall mean any expense, liability or loss,
including attorneys' fees, judgments, fines, ERISA excise taxes and penalties,
amounts paid or to be paid in settlement, any interest, assessments or other
charges imposed thereon, any federal, state, local or foreign taxes imposed as a
result of the actual or deemed receipt of any payments under this Agreement and
all other costs and obligations, paid or incurred in connection with
investigating, defending, being a witness in, participating in (including on
appeal) or preparing for any of the foregoing in, any Proceeding relating to any
Indemnifiable Event.
(e) "Indemnifiable Event" shall mean any event or occurrence that
takes place either prior to or after the execution of this Agreement, related to
the fact that Indemnitee is or was a director or officer of the Company or an
Affiliate of the Company, or while a director or officer is or was serving at
the request of the Company or an Affiliate of the Company as a director,
officer, employee, trustee, agent or fiduciary of another foreign or domestic
corporation, partnership, joint venture, employee benefit plan, trust or other
enterprise or was a director, officer, employee or agent of a foreign or
domestic corporation that was a predecessor corporation of the Company or of
-2-
<PAGE>
another enterprise at the request of such predecessor corporation, or related to
anything done or not done by Indemnitee in any such capacity, whether or not the
basis of the Proceeding is alleged action in an official capacity as a director,
officer, employee or agent or in any other capacity while serving as a director,
officer, employee or agent of the Company or an Affiliate of the Company, as
described above.
(f) "Independent Counsel" shall mean the person or body appointed
in connection with Section 3.
(g) "Proceeding" shall mean any threatened, pending or completed
action, suit or proceeding or any alternative dispute resolution mechanism
(including an action by or in the right of the Company or an Affiliate of the
Company) or any inquiry, hearing or investigation, whether conducted by the
Company or an Affiliate of the Company or any other party, that Indemnitee in
good faith believes might lead to the institution of any such action, suit or
proceeding, whether civil, criminal, administrative, investigative or other.
(h) "Reviewing Party" shall mean the person or body appointed in
accordance with Section 3.
(i) "Voting Securities" shall mean any securities of the Company
that vote generally in the election of directors.
2. Agreement to Indemnify.
(a) General Agreement. In the event Indemnitee was, is or becomes
a party to or witness or other participant in, or is threatened to be made a
party to or witness or other participant in, a Proceeding by reason of (or
arising in part out of) an Indemnifiable Event, the Company shall indemnify
Indemnitee from and against any and all Expenses to the fullest extent permitted
by law, as the same exists or may hereafter be amended or interpreted (but in
the case of any such amendment or interpretation, only to the extent that such
amendment or interpretation permits the Company to provide broader
indemnification rights than were permitted prior thereto). The parties hereto
intend that this Agreement shall provide for indemnification in excess of that
expressly permitted by statute, including, without limitation, any
indemnification provided by the Company's Certificate of Incorporation, its
Bylaws, vote of its stockholders or disinterested directors or applicable law.
(b) Initiation of Proceeding. Notwithstanding anything in this
Agreement to the contrary, Indemnitee shall not be entitled to indemnification
pursuant to this Agreement in connection with any Proceeding initiated by
Indemnitee against the Company or any director or officer of the Company unless
(i) the Company has joined in or the Board has consented to the initiation of
such Proceeding, (ii) the Proceeding is one to enforce indemnification rights
under Section 5 or (iii) the Proceeding is instituted after a Change in Control
(other than a Change in Control approved by a majority of the directors on the
Board who were directors immediately prior to such Change in Control) and
Independent Counsel has approved its initiation.
-3-
<PAGE>
(c) Expense Advances. If so requested by Indemnitee, the Company
shall advance (within thirty (30) days of such request) any and all Expenses to
Indemnitee (an "Expense Advance"). The Indemnitee shall qualify for such Expense
Advances upon the execution and delivery to the Company of this Agreement which
shall constitute an undertaking providing that the Indemnitee undertakes to
repay such Expense Advances if and to the extent that it is ultimately
determined by a court of competent jurisdiction in a final judgment, not subject
to appeal, that Indemnitee is not entitled to be indemnified by the Company.
Indemnitee's obligation to reimburse the Company for Expense Advances shall be
unsecured and no interest shall be charged thereon. This Section 2(c) shall not
apply to any claim made by Indemnitee for which indemnity is excluded pursuant
to Section 2(b) or 2(f).
(d) Mandatory Indemnification. Notwithstanding any other
provision of this Agreement, to the extent that Indemnitee has been successful
on the merits or otherwise in defense of any Proceeding relating in whole or in
part to an Indemnifiable Event or in defense of any issue or matter therein,
Indemnitee shall be indemnified against all Expenses incurred in connection
therewith.
(e) Partial Indemnification. If Indemnitee is entitled under any
provision of this Agreement to indemnification by the Company for some or a
portion of Expenses, but not, however, for the total amount thereof, the Company
shall nevertheless indemnify Indemnitee for the portion thereof to which
Indemnitee is entitled.
(f) Prohibited Indemnification. No indemnification pursuant to
this Agreement shall be paid by the Company on account of any Proceeding in
which a final judgment is rendered against Indemnitee or Indemnitee enters into
a settlement, in each case (i) for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act or similar provisions of any
federal, state or local laws; (ii) for which payment has actually been made to
or on behalf of Indemnitee under any insurance policy or other indemnity
provision, except with respect to any excess beyond the amount paid under any
insurance policy or other indemnity provision; or (iii) for which payment is
prohibited by law. Notwithstanding anything to the contrary stated or implied in
this Section 2(f), indemnification pursuant to this Agreement relating to any
Proceeding against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Exchange Act or similar provisions of any
federal, state or local laws shall not be prohibited if Indemnitee ultimately
establishes in any Proceeding that no recovery of such profits from Indemnitee
is permitted under Section 16(b) of the Exchange Act or similar provisions of
any federal, state or local laws.
3. Reviewing Party. Prior to any Change in Control, the Reviewing
Party shall be any appropriate person or body consisting of a member or members
of the Board or any other person or body appointed by the Board who is not a
party to the particular Proceeding with respect to which Indemnitee is seeking
indemnification; provided that if all members of the Board are parties to the
particular Proceeding with respect to which Indemnitee is seeking
indemnification, the Independent Counsel referred to below shall become the
Reviewing Party; after a Change in Control, the Independent Counsel referred to
below shall become the Reviewing Party. With respect to all matters arising
before a Change in Control for which Independent Counsel shall be the Reviewing
-4-
<PAGE>
Party and all matters arising after a Change in Control, in each case concerning
the rights of Indemnitee to indemnity payments and Expense Advances under this
Agreement or any other agreement or under applicable law or the Company's
Certificate of Incorporation or Bylaws now or hereafter in effect relating to
indemnification for Indemnifiable Events, the Company shall seek legal advice
only from Independent Counsel selected by Indemnitee and approved by the Company
(which approval shall not be unreasonably withheld or delayed), and who has not
otherwise performed services for the Company or the Indemnitee (other than in
connection with indemnification matters) within the last five years. The
Independent Counsel shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of
interest in representing either the Company or Indemnitee in an action to
determine Indemnitee's rights under this Agreement. Such counsel, among other
things, shall render its written opinion to the Company and Indemnitee as to
whether and to what extent the Indemnitee should be permitted to be indemnified
under applicable law. The Company agrees to pay the reasonable fees of the
Independent Counsel and to indemnify fully such counsel against any and all
expenses (including attorneys' fees), claims, liabilities, loss and damages
arising out of or relating to this Agreement or the engagement of Independent
Counsel pursuant hereto.
4. Indemnification Process and Appeal.
(a) Indemnification Payment. Indemnitee shall be entitled to
indemnification of Expenses, and shall receive payment thereof, from the Company
in accordance with this Agreement as soon as practicable after Indemnitee has
made written demand on the Company for indemnification, but in no event later
than thirty (30) business days after such demand, unless the Reviewing Party has
given a written opinion to the Company that Indemnitee is not entitled to
indemnification under applicable law. Indemnitee shall cooperate with the
Reviewing Party making a determination with respect to Indemnitee's entitlement
to indemnification, including providing to the Reviewing Party upon reasonable
advance request any documentation or information which is not privileged or
otherwise protected from disclosure and which is reasonably available to
Indemnitee and reasonably necessary to such determination.
(b) Suit to Enforce Rights. Regardless of any action by the
Reviewing Party, if Indemnitee has not received full indemnification within
thirty (30) days after making a demand in accordance with Section 4(a),
Indemnitee shall have the right to enforce its indemnification rights under this
Agreement by commencing litigation in any court in the State of Arizona or the
State of Delaware having subject matter jurisdiction thereof seeking an initial
determination by the court or challenging any determination by the Reviewing
Party or any aspect thereof. The Company hereby consents to service of process
and to appear in any such proceeding. Any determination by the Reviewing Party
not challenged by the Indemnitee shall be binding on the Company and Indemnitee.
The Company shall be precluded from asserting in any such proceeding that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement. The remedy provided for in this Section 4
shall be in addition to any other remedies available to Indemnitee at law or in
equity.
(c) Defense to Indemnification, Burden of Proof, and
Presumptions. It shall be a defense to any action brought by Indemnitee against
the Company to enforce this
-5-
<PAGE>
Agreement (other than an action brought to enforce a claim for Expenses incurred
in defending a Proceeding in advance of its final disposition) that it is not
permissible under applicable law for the Company to indemnify Indemnitee for the
amount claimed. In connection with any such action or any determination by the
Reviewing Party or otherwise as to whether Indemnitee is entitled to be
indemnified hereunder, the burden of proving such a defense or determination
shall be on the Company. Neither the failure of the Reviewing Party or the
Company (including its Board, independent legal counsel or its stockholders) to
have made a determination prior to the commencement of such action by Indemnitee
that indemnification of the claimant is proper under the circumstances because
Indemnitee has met the standard of conduct set forth in applicable law, nor an
actual determination by the Reviewing Party or Company (including its Board,
independent legal counsel or its stockholders) that the Indemnitee had not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the Indemnitee has not met the applicable standard of
conduct. For purposes of this Agreement, the termination of any claim, action,
suit or proceeding, by judgment, order, settlement (whether with or without
court approval), conviction or upon a plea of nolo contendere or its equivalent,
shall not create a presumption that Indemnitee did not meet any particular
standard of conduct or have any particular belief or that a court has determined
that indemnification is not permitted by applicable law. For purposes of any
determination of good faith under any applicable standard of conduct, Indemnitee
shall be deemed to have acted in good faith if Indemnitee's action is based on
the records or books of account of the Company, including financial statements,
or on information supplied to Indemnitee by the officers of the Company in the
course of their duties, or on the advice of legal counsel for the Company or the
Board or counsel selected by any committee of the Board or on information or
records given or reports made to the Company by an independent certified public
accountant or by an appraiser, investment banker or other expert selected with
reasonable care by the Company or the Board or any committee of the Board. The
provisions of the preceding sentence shall not be deemed to be exclusive or to
limit in any way the other circumstances in which the Indemnitee may be deemed
to have met the applicable standard of conduct. The knowledge and/or actions, or
failure to act, or any director, officer, agent or employee of the Company shall
not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement.
5. Indemnification for Expenses Incurred in Enforcing Rights. The
Company shall indemnify Indemnitee against any and all Expenses that are
incurred by Indemnitee in connection with any action brought by Indemnitee for:
(i) indemnification or advance payment of Expenses by the
Company under this Agreement or any other agreement or under applicable law or
the Company's Certificate of Incorporation or Bylaws now or hereafter in effect
relating to indemnification for Indemnifiable Events, and/or;
(ii) recovery under directors' and officers' liability
insurance policies maintained by the Company; but only in the event that
Indemnitee ultimately is determined to be entitled to such indemnification or
insurance recovery, as the case may be. In addition, the Company shall, if so
requested by Indemnitee, advance the foregoing Expenses to Indemnitee, subject
to and in accordance with Section 2(c).
6. Notification and Defense of Proceeding.
-6-
<PAGE>
(a) Notice. Promptly after receipt by Indemnitee of notice of the
commencement of any Proceeding, Indemnitee shall, if a claim in respect thereof
is to be made against the Company under this Agreement, notify the Company of
the commencement thereof; but the omission so to notify the Company will not
relieve the Company from any liability that it may have to Indemnitee, except as
provided in Section 6(c).
(b) Defense. With respect to any Proceeding as to which
Indemnitee notifies the Company of the commencement thereof, the Company will be
entitled to participate in the Proceeding at its own expense and except as
otherwise provided below, to the extent the Company so wishes, it may assume the
defense thereof with counsel reasonably satisfactory to Indemnitee. After notice
from the Company to Indemnitee of its election to assume the defense of any
Proceeding, the Company shall not be liable to Indemnitee under this Agreement
or otherwise for any Expenses subsequently incurred by Indemnitee in connection
with the defense of such Proceeding other than reasonable costs of investigation
or as otherwise provided below. Indemnitee shall have the right to employ legal
counsel in such Proceeding, but all Expenses related thereto incurred after
notice from the Company of its assumption of the defense shall be at
Indemnitee's expense unless: (i) the employment of legal counsel by Indemnitee
has been authorized by the Company, (ii) Indemnitee has reasonably determined
that there may be a conflict of interest between Indemnitee and the Company in
the defense of the Proceeding, (iii) after a Change in Control, the employment
of counsel by Indemnitee has been approved by the Independent Counsel or (iv)
the Company shall not in fact have employed counsel to assume the defense of
such Proceeding, in each of which cases all Expenses of the Proceeding shall be
borne by the Company. The Company shall not be entitled to assume the defense of
any Proceeding brought by or on behalf of the Company, or as to which Indemnitee
shall have made the determination provided for in (ii) above or under the
circumstances provided for in (iii) and (iv) above.
(c) Settlement of Claims. The Company shall not be liable to
indemnify Indemnitee under this Agreement or otherwise for any amounts paid in
settlement of any Proceeding effected without the Company's written consent,
such consent not to be unreasonably withheld; provided, however, that if a
Change in Control has occurred, the Company shall be liable for indemnification
of Indemnitee for amounts paid in settlement if the Independent Counsel has
approved the settlement. The Company shall not settle any Proceeding in any
manner that would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. The Company shall not be liable to indemnify the
Indemnitee under this Agreement with regard to any judicial award if the Company
was not given a reasonable and timely opportunity as a result of Indemnitees'
failure to provide notice, at its expense, to participate in the defense of such
action, and the lack of such notice materially prejudiced the Company's ability
to participate in defense of such action. The Company's liability hereunder
shall not be excused if participation in the Proceeding by the Company was
barred by this Agreement.
7. Non-Exclusivity. The rights of Indemnitee hereunder shall be in
addition to any other rights Indemnitee may have under the Company's Certificate
of Incorporation, Bylaws, applicable law or otherwise; provided, however, that
this Agreement shall supersede any prior indemnification agreement between the
Company and the Indemnitee. To the extent that a change in applicable law
(whether by statute or judicial decision) permits greater indemnification than
would be afforded currently under the Company's Certificate of Incorporation,
Bylaws, applicable law or
-7-
<PAGE>
this Agreement, it is the intent of the parties that Indemnitee enjoy by this
Agreement the greater benefits so afforded by such change.
8. Liability Insurance. To the extent the Company maintains an
insurance policy or policies providing general and/or directors' and officers'
liability insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Company director or officer.
9. Period of Limitations. No legal action shall be brought and no
cause of action shall be asserted by or on behalf of the Company or any
Affiliate of the Company against Indemnitee, Indemnitee's spouse, heirs,
executors or personal or legal representatives after the expiration of two (2)
years from the date of accrual of such cause of action or such longer period as
may be required by state law under the circumstances. Any claim or cause of
action of the Company or its Affiliate shall be extinguished and deemed released
unless asserted by the timely filing and notice of a legal action within such
period; provided, however, that if any shorter period of limitations is
otherwise applicable to any such cause of action, the shorter period shall
govern.
10. Amendment of this Agreement. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of the parties hereto. No waiver of any of the provisions of this Agreement
shall be binding unless in the form of a writing signed by the party against
whom enforcement of the waiver is sought, and no such waiver shall operate as a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver. Except as specifically provided herein,
no failure to exercise or any delay in exercising any right or remedy hereunder
shall constitute a waiver thereof.
11. Subrogation. In the event of payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of such documents necessary to enable the Company effectively to bring suit to
enforce such rights.
12. No Duplication of Payments. The Company shall not be liable under
this Agreement to make any payment in connection with any claim made against
Indemnitee to the extent Indemnitee has otherwise received payment (under any
insurance policy, Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder.
13. Duration of Agreement. This Agreement shall continue until and
terminate upon the later of (a) six (6) years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company or (b) one
(1) year after the final termination of any Proceeding, including any appeal,
then pending in respect of which Indemnitee is granted rights of indemnification
or advancement of Expenses hereunder and of any proceeding commenced by
Indemnitee pursuant to Section 4(b) of this Agreement relating thereto.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their respective
successors (including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all
-8-
<PAGE>
of the business and/or assets of the Company), assigns, spouses, heirs and
personal and legal representatives. The Company shall require and cause any
successor (whether direct or indirect by purchase, merger, consolidation or
otherwise) to all, substantially all or a substantial part, of the business
and/or assets of the Company, by written agreement in form and substance
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform if no such succession had taken place. The indemnification
provided under this Agreement shall continue as to Indemnitee for any action
taken or not taken while serving in an indemnified capacity pertaining to an
Indemnifiable Event even though Indemnitee may have ceased to serve in such
capacity at the time of any Proceeding.
15. Severability. If any provision (or portion thereof) of this
Agreement shall be held by a court of competent jurisdiction to be invalid, void
or otherwise unenforceable, (a) the remaining provisions shall remain
enforceable to the fullest extent permitted by law; (b) such provision or
provisions shall be deemed reformed to the extent necessary to conform to
applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement
(including, without limitation, each portion of this Agreement containing any
provision held to be invalid, void or otherwise unenforceable, that is not
itself invalid, void or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, void or unenforceable.
16. Contribution. To the fullest extent permissible under applicable
law, whether or not the indemnification provided for in this Agreement is
available to Indemnitee for any reason whatsoever, the Company shall pay all or
a portion of the amount that would otherwise be incurred by Indemnitee for
Expenses in connection with any claim relating to an Indemnifiable Event, as is
deemed fair and reasonable in light of all of the circumstances of such
Proceeding in order to reflect (i) the relative benefits received by the Company
and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to
such Proceeding; and/or (ii) the relative fault of the Company (and its
directors, officers, employees and agents) and Indemnitee in connection with
such event(s) and/or transaction(s).
17. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware applicable to
contracts made and to be performed in such State without giving effect to its
principles of conflicts of laws. The Company and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement may be brought in the Delaware Court of Chancery
or in the applicable state or federal courts in the State of Arizona; (ii)
consent to submit to the jurisdiction of the Delaware Court of Chancery or of
the applicable state or federal courts in the State of Arizona for purposes of
any action or proceeding arising out of or in connection with this Agreement,
(iii) waive any objection to the laying of venue of any such action or
proceeding in the Delaware Court of Chancery or in the applicable state or
federal courts in the State of Arizona, and (iv) waive, and agree not to plead
or to make, any claim that any such action or proceeding brought in the Delaware
Court of Chancery or in the applicable state or federal courts in the State of
Arizona has been brought in an improper or inconvenient forum.
18. Notices. All notices, demands and other communications required or
permitted hereunder shall be made in writing and shall be deemed to have been
duly given if
-9-
<PAGE>
delivered by hand, against receipt or mailed, postage prepaid, certified or
registered mail, return receipt requested and addressed to the Company at:
Limelight Networks, Inc.
2220 W. 14th Street
Tempe, AZ 85281
Attention: Chief Executive Officer/ General Counsel
and to Indemnitee at:
[_____]
[_____].
Notice of change of address shall be effective only when given in accordance
with this Section. All notices complying with this Section shall be deemed to
have been received on the date of hand delivery or on the third business day
after mailing.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
* * * * *
-10-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day specified above.
LIMELIGHT NETWORKS, INC.
a Delaware corporation
By:
------------------------------------
Print Name:
----------------------------
Title:
---------------------------------
INDEMNITEE,
an individual
----------------------------------------
Indemnitee