Escrow Agreement - Limelight Networks Inc., Michael Gordon, GS Capital Partners V Fund LP and US Bank NA
ESCROW AGREEMENT
CLARIFICATION
This clarification to the Escrow Agreement (this "Agreement") is dated
as of May 9, 2007, by and among Limelight Networks, Inc., a Delaware
corporation (the "Company"), Michael Gordon, solely in his capacity as
stockholders' representative (the "Stockholders' Representative"), GS Capital
Partners V Fund, L.P., solely in its capacity as purchasers' representative (the
"Purchasers' Representative"), and U.S. Bank, National Association, as escrow
agent (the "Escrow Agent").
RECITALS
WHEREAS: The Purchasers' Representative, Stockholders' Representative,
the Company and the Escrow Agent entered into an Escrow Agreement dated as of
July 12, 2006 (the "Escrow Agreement").
WHEREAS: Section 10(g) of the Escrow Agreement provides that the Escrow
Agreement may be amended or modified by an instrument in writing signed by, or
on behalf of, the Purchaser's Representative, the Stockholders' Representative,
and the Escrow Agent.
WHEREAS: The Purchasers' Representative, the Stockholders'
Representative, the Company and the Escrow Agent wish to confirm their
understanding with respect to claims made under the Escrow Agreement as set
forth below pursuant to Section 10(g) of the Escrow Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
Payments from the Escrow Fund. Notwithstanding anything to the contrary
in the Escrow Agreement, an amount equal to $3,700,000 shall be
distributed from the Escrow Fund to the Tendering Stockholders by check
within five (5) business days following the declaration or ordering of
effectiveness of a registration statement or similar document in
compliance with the Securities Act for the offer and sale of the shares
of the Company's Common Stock in which holders of Series B Preferred
Stock convert their shares into shares of Common Stock in connection
with such public offering (the "IPO Date").
Escrow Claims. The parties hereto acknowledge and agree that beginning
on the IPO Date, the Company shall only make Indemnification Claims
based upon Akamai Expenses (as defined in the Series B Convertible
Preferred Stock Purchase Agreement, dated May 18, 2006, as amended (the
"Purchase Agreement")), including any Losses (as defined in the
Purchase Agreement) based upon breaches of Section 2.8 of the Purchase
Agreement, either of which may occur at any time, and breaches of the
representations and warranties in Section 2.16 of the Purchase
Agreement. Stockholders' Representative acknowledges that he has
received an Indemnification Certificate with respect to breaches of
Section 2.16 of the Purchase Agreement in the amount of $1,326,965.20
that Stockholders' Representative irrevocably confirms that he will not
deliver to the Escrow Agent a Stockholders' Certificate (as defined in
the Escrow Agreement) with respect to such Indemnification Certificate
and that Stockholders' Representative directs Escrow Agent to remit the
amount of $1,326,965.20 in satisfaction of such Indemnification
Certificate.
Termination. Notwithstanding anything contained in the Purchase
Agreement or Escrow Agreement to the contrary, the parties hereto
further wish to clarify that the Company may submit an Indemnification
Certificate to the Escrow Agent, at any time, including after (i) the
eighteen
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(18) month anniversary of the Closing (as defined in the Purchase
Agreement) or (ii) IPO Date. The Escrow Agreement shall terminate on
the earlier of (i) the date on which there are no funds or other
property remaining in the Escrow Fund and (ii) ten business days
following the date on which (x) all claims made in Indemnification
Certificates delivered to the Escrow Agent shall have been resolved,
regardless of when such Indemnification Certificates are submitted to
the Escrow Agent and (y) the Company confirms in writing that it does
not reasonably expect to submit additional Indemnification
Certificates.
Interest. Stockholders' Representative, the Company and Purchasers'
Representative, hereby direct Escrow Agent to remit any interest earned
on the Escrow Fund to the Tendering Stockholders and to remit such
interest at the end of each fiscal year thereafter until termination of
the Escrow Fund.
IN WITNESS WHEREOF, each party hereto has executed or has caused this
Agreement to be executed by its officer hereunto duly authorized as of the date
first written above.
LIMELIGHT NETWORKS, INC.
By: /s/ Jeffrey Lunsford
--------------------------
Jeffrey Lunsford
Chief Executive Officer
STOCKHOLDERS' REPRESENTATIVE:
By: /s/ Michael Gordon
--------------------------
Michael Gordon
PURCHASERS' REPRESENTATIVE:
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C.
Its General Partner
By: /s/ Joseph Gleberman
--------------------------
Joseph Gleberman
Managing Director
ACKNOWLEDGED:
ESCROW AGENT:
U.S. BANK, NATIONAL ASSN.
By: /s/ Sheila Soares
--------------------------
Sheila Soares
Vice President