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Exhibit 10.1
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
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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
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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.
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(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 t
