LIMELIGHT NETWORKS, INC. MATT HALE AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 99.1
XXXX XXXX AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT dated July 9, 2008 (the “Agreement”) amends and
restates in its entirety the Employment Agreement entered into as of November 22, 2006 (the
“Signing Date”), by and between Limelight Networks, Inc. (the “Company”) and Xxxx Xxxx
(“Executive”).
1. Duties and Scope of Employment.
(a) Positions and Duties. Executive shall be the Company’s Chief Financial Officer
and will report to the Company’s Board of Directors (the “Board”). 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 Board. 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 Board (which approval will not be unreasonably withheld);
provided, however, that Executive may, without the approval of the Board, serve in any capacity
with any civic, educational, professional, industry or charitable organization, provided such
services do not interfere with Executive’s obligations to Company. Executive hereby represents,
warrants and covenants to the Company that as of the Effective Time, 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.
(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 anticipate that Executive shall
terminate his employment as of December 31, 2008; provided, however, that Executive and the Company
agree that Executive’s employment with the Company is and will continue to constitute “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. The Company will pay Executive an annual salary of $275,000 as
compensation for his services (such annual salary, as is then effective, to be referred to herein
as “Base Salary.” 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) RESERVED
(c) Annual Incentive. Executive will be eligible to receive annual cash incentives
payable for the achievement of performance goals established by the Board or by the Compensation
Committee of the Board (the “Committee”). During calendar year 2008, Executive’s target annual
incentive (“Target Annual Incentive”) will be $100,000. 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 are achieved.
(d) RESERVED
(e) RESERVED
(f) Equity Awards.
(i) On December 1, 2006, the Company granted to Executive 345,000 shares of restricted Common
Stock (the “Stock Grant”) of the Company under the Company’s Amended and Restated 2003 Incentive
Compensation Plan (the “Plan”). One-fourth (1/4th) of the total number of shares of
Common Stock subject to the Stock Grant vested on December 1, 2007, and an additional one
forty-eighth (1/48th) of the total number of shares of Common Stock subject to the Stock
Grant vests on the first day of each calendar month thereafter, provided that the Continuous
Service (as such term is defined in the Plan) of Executive continues through and on each such date.
The Stock Grant is subject to the Plan and the terms and conditions of a restricted stock purchase
agreement between Executive and the Company.
(ii) On December 1, 2006, the Company issued to Executive an option to purchase 105,000 shares
of Common Stock (the “Stock Option”) of the Company at an exercise price of $6.67 per share under
the terms of the Plan. One-fourth (1/4th) of the total number of shares of Common Stock
subject to the Stock Option vested and became exercisable on December 1, 2007, and an additional
one forty-eighth (1/48th) of the total number of shares of Common Stock subject to the
Stock Option vests and becomes exercisable on the first day of each calendar month thereafter,
provided that the Continuous Service (as such term is defined in the Plan) of Executive continues
through and on each such date. The Stock Option is subject to the Plan and the terms and
conditions of a stock option agreement between Executive and the Company.
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(iii) In the event that the Company consummates a Change of Control transaction, 50% (subject
to the following sentence) of Executive’s then outstanding unvested equity awards 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
6. RESERVED
7. 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 accrued up to
the effective date of termination; (b) unpaid Annual Bonus accrued up to the effective date of
termination; (c) unpaid, but earned and accrued annual incentive for any completed fiscal year as
of his termination of employment; (d) pay for accrued but unused vacation; (e) benefits or
compensation as provided under the terms of any employee benefit and compensation agreements or
plans applicable to Executive; (f) unreimbursed business expenses required to be reimbursed to
Executive; and (g) 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 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 8.
8. 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
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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 9, Executive will receive:
(i) continued payment of Executive’s Base Salary (subject to applicable tax withholdings) for
(i) the period from the date of termination to December 31, 2008, if any, and (ii) twelve (12)
months thereafter, such amounts to be paid in accordance with the Company’s normal payroll
policies;
(ii) the current year’s Target Annual Incentive based upon the Company’s achievement of
performance targets set forth in the current year’s Management Bonus Plan, but in no event less
than the current year’s Target Annual Incentive prorated to the date of termination, such prorated
amount calculated by multiplying the current year Target Annual Incentive by a fraction the
numerator of which is equal to the number of days between the start of the year and the date of
termination and the denominator of which is 365, such amounts to be paid at the same time as
similar bonus payments are made to the Company’s other executive officers;
(iii) the retention bonus of $45,000;
(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
the Consolidated Omnibus Budget Reconciliation Act (“COBRA”)), or (B) the date upon which Executive
and Executive’s eligible dependents become covered under similar plans;
(v) if Executive’s employment terminates prior to December 31, 2008, then that number of
shares subject to Executive’s Stock Option and that number of Stock Grant shares that would have
vested if Executive remained employed until December 31, 2008, shall immediately vest;
(vi) fifty percent (50%) of the unvested shares subject to Executive’s Stock Option shall vest
and fifty percent (50%) of the Stock Grant shares which remain subject to a repurchase right in
favor of the Company shall be released from the Company’s repurchase right;
(vii) if the Company is successful in closing its financial books for the month of November
2008 within 10 business days of the end of that month, regardless whether Executive is still an
active employee at that time, an additional twenty-five percent (25%) of the unvested shares
subject to Executive’s Stock Option shall vest and an additional twenty-five percent (25%) of the
Stock Grant shares which remain subject to a repurchase right in favor of the Company shall be
released from the Company’s repurchase right; and
(viii) any additional vesting of Executive’s Stock Option and release of any remaining
repurchase right with respect to the Stock Grant shares shall be in the sole discretion of the
Compensation Committee of the Company.
(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
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or by Executive for Good Reason, and the termination is in Connection with a Change of
Control, then, subject to Section 9, 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 withholdings), such amounts to
be paid in accordance with the Company’s normal payroll policies over the course of twelve (12)
months; (iv) 100% (subject to the following sentence) of Executive’s then outstanding unvested
equity awards will vest, and (v) 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. Notwithstanding the previous sentence to the
contrary, if the Acquisition Bonus pursuant to paragraph 3(e) shall become due and payable, then no
acceleration of vesting shall occur pursuant to this paragraph 8(b).
(c) Voluntary Termination Without Good Reason or Termination for Cause. If
Executive’s employment is terminated voluntarily (excluding a termination for Good Reason), is
terminated for Cause by the Company, then, except as provided in Section 3(f)(i) or Section 7,
(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. It is hereby agreed that Executive’s termination as of December 31, 2008
shall be treated as a “Termination Without Cause or Resignation for Good Reason other than in
Connection with a Change of Control” pursuant to Section 8(a) above. In the event that Executive’s
employment is terminated due to death or Disability, twenty-five percent (25%) of Executive’s then
unvested equity awards shall vest.
9. 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 8 will be subject to Executive signing and not revoking a separation
agreement and release of claims in the form attached hereto as Exhibit A. No severance or
other benefits pursuant to Section 8 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 8 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 9(b), the Company’s sole form of recourse will be to terminate any
future payments or benefits owed to Executive pursuant to Section 8 of this Agreement. Executive’s
passive ownership of not more than 1% of any publicly traded company and/or 5% ownership of any
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privately held company will not constitute a breach of this Section 9(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 9(b).
(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 8 will be subject to Executive continuing to comply with the terms of the Confidential
Information Agreement and the provisions of this Section 9.
(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.
10. 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.
11. 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;
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(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;
(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);
(viii) Executive’s failure to relocate to the Phoenix area within nine (9) months of the
Effective Date.
(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;
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(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 employment and
ending on the date on which Executive is no longer receiving Base Salary payments under Section 8.
(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 twenty- five (25) miles
from the location of the Company’s executive offices as of the Effective Date;
(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.
It being understood that the entry into this Agreement and the execution of the terms herein
shall not be deemed to constitute Good Reason.
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(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.
12. Indemnification. Subject to applicable law, Executive will be provided
indemnification to the maximum extent permitted by the Company’s Certificate of Incorporation or
Bylaws, including, if applicable, any directors and officers insurance policies, with such
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.
13. Confidential Information. Executive has executed a form of Employment,
Confidential Information and Invention Assignment Agreement (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.
14. 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. 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 14 will in no way prevent Executive from transferring any vested property he owns.
15. 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
Xxxxx, Xxxxxxx 00000
If to Executive:
at the last residential address known by the Company.
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16. 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.
17. 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 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.
18. 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.
19. 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.
20. Survival. The Confidential Information Agreement and the Company’s and
Executive’s responsibilities under Sections 7, 8, 9 and 12 will survive the termination of this
Agreement.
21. Headings. All captions and Section headings used in this Agreement are for
convenient reference only and do not form a part of this Agreement.
22. Tax Withholding. All payments made pursuant to this Agreement will be subject to
withholding of applicable taxes.
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23. Governing Law. This Agreement will be governed by the laws of the state of
Arizona without regard to its conflict of laws provisions.
24. 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.
25. 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.
26. 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.
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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:
/s/ Xxxxxx Xxxxxxx
|
Date: July 9, 2008 | |||
Xxxxxx Xxxxxxx, Senior Vice President, Chief Legal Officer and Secretary |
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EXECUTIVE: |
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/s/ Xxxx Xxxx
|
Date: July 9, 2008 | |||
Xxxx Xxxx |
[SIGNATURE PAGE TO XXXX AMENDED AND RESTATED
EMPLOYMENT AGREEMENT]
EMPLOYMENT AGREEMENT]
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EXHIBIT A
Form of Separation Agreement and Release
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is made by and between Xxxx Xxxx
(“Employee”) and Limelight Networks, Inc. (the “Company”) (collectively referred to as the
“Parties” or individually referred to as a “Party”).
RECITALS
WHEREAS, Employee was employed by the Company as its Chief Financial Officer;
WHEREAS, Employee entered into an Employment Agreement with the Company on November 22, 2006;
WHEREAS, Employee entered into an Amended and Restated Employment Agreement with the Company
on July ___, 2008 (the “Employment Agreement”);
WHEREAS, Employee entered into an At-Will Employment, Confidential Information, Invention
Assignment, and Arbitration Agreement (the “Confidentiality Agreement”) with the Company on
November 22, 2006, which agreement was attached as Exhibit A to the Employment Agreement;
WHEREAS, the Company and Employee have entered into (i) a Stock Option Agreement, dated
December 1, 2006, granting Employee the option to purchase 105,000 shares of the Company’s common
stock at an exercise price of $6.67 per share (the “Stock Option”) and (ii) a Restricted Stock
Purchase Agreement, dated December 1, 2006, granting Employee 345,000 shares of the Company’s
common stock (the “Stock Grant”), each subject to the terms and conditions of the Company’s Amended
and Restated 2003 Incentive Compensation Plan (collectively the “Stock Agreements”);
WHEREAS, the Company terminated Employee’s employment with the Company effective
(the “Termination Date”); and
WHEREAS, the Parties wish to resolve any and all disputes, claims, complaints, grievances,
charges, actions, petitions, and demands that the Employee may have against the Company and any of
the Releasees as defined below, including, but not limited to, any and all claims arising out of or
in any way related to Employee’s employment with or separation from the Company;
NOW, THEREFORE, in consideration of the mutual promises made herein, the Company and Employee
hereby agree as follows:
COVENANTS
1. Consideration. The Company shall pay Employee the consideration and benefits to be
paid to Employee under the Employment Agreement in the event of a termination without cause (or
without cause in connection with a change of control as the case may be), and in particular those
items set forth in sections 7 and 8 of the Employment Agreement.
2. Stock. The Parties agree that for purposes of determining the number of shares of
the Company’s common stock that Employee is entitled to (i) purchase from the Company pursuant to
the Stock Option and (ii) retain pursuant to Stock Grant without a further right of repurchase by
the Company, in each case after taking into account Executive’s employment agreement, Employee will
be considered to have vested in accordance with the terms of Section 8 of the Employment Agreement.
Below is a comprehensive list of all equity awards and the extent of vesting as of the Termination
Date:
| a. | December 1, 2006 Restricted Stock Grant: shares vested. The Company hereby exercises its right of repurchase with respect to shares and shall tender payment herewith for the repurchase of such shares. | ||
| b. | December 1, 2006 Stock Option Grant: shares vested. |
Pursuant to the terms of the Employment Agreement, such stock options shall be exercisable
until , 2010 [24 months following the Termination Date], subject to the remaining terms of
the Company’s Stock Plan.
3. Benefits. Employee’s health insurance benefits shall cease on [the last day of the
month in which the Termination Date occurs], subject to Employee’s right to continue his health
insurance under COBRA. Employee’s participation in all benefits and incidents of employment,
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including, but not limited to, vesting in stock options, and the accrual of bonuses, vacation,
and paid time off, ceased as of the Termination Date.
4. Payment of Salary and Receipt of All Benefits. Employee acknowledges and
represents that, other than the consideration set forth in this Agreement, the Company has paid or
provided all salary, wages, bonuses, accrued vacation/paid time off, housing allowances, relocation
costs, interest, severance, outplacement costs, fees, reimbursable expenses, commissions, stock,
stock options, vesting, and any and all other benefits and compensation due to Employee.
5. Release of Claims. Employee agrees that the foregoing consideration represents
settlement in full of all outstanding obligations owed to Employee by the Company and its current
and former officers, directors, employees, agents, investors, attorneys, shareholders,
administrators, affiliates, divisions, and subsidiaries, and predecessor and successor corporations
and assigns (collectively, the “Releasees”). Employee, on his own behalf and on behalf of his
respective heirs, family members, executors, agents, and assigns, hereby and forever releases the
Releasees from, and agrees not to xxx concerning, or in any manner to institute, prosecute, or
pursue, any claim, complaint, charge, duty, obligation, or cause of action relating to any matters
of any kind, whether presently known or unknown, suspected or unsuspected, that Employee may
possess against any of the Releasees arising from any omissions, acts, facts, or damages that have
occurred up until and including the Effective Date of this Agreement, including, without
limitation:
a. any and all claims relating to or arising from Employee’s employment relationship with the
Company and the termination of that relationship;
b. any and all claims relating to, or arising from, Employee’s right to purchase, or actual
purchase of shares of stock of the Company, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable state corporate law,
and securities fraud under any state or federal law;
c. any and all claims for wrongful discharge of employment; termination in violation of public
policy; discrimination; harassment; retaliation; breach of contract, both express and implied;
breach of covenant of good faith and fair dealing, both express and implied; promissory estoppel;
negligent or intentional infliction of emotional distress; fraud; negligent or intentional
misrepresentation; negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; conversion; and disability benefits;
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d. any and all claims for violation of any federal, state, or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1991; the
Rehabilitation Act of 1973; the Americans with Disabilities Act of 1990; the Equal Pay Act; the
Fair Labor Standards Act, except as prohibited by law; the Fair Credit Reporting Act; the Age
Discrimination in Employment Act of 1967; the Older Workers Benefit Protection Act; the Employee
Retirement Income Security Act of 1974; the Worker Adjustment and Retraining Notification Act; the
Family and Medical Leave Act, except as prohibited by law; the Xxxxxxxx-Xxxxx Act of 2002; the
Uniformed Services Employment and Reemployment Rights Act; the Arizona Civil Rights Act, and the
Arizona Equal Protection Act, except as prohibited by law;
e. any and all claims for violation of the federal or any state constitution;
f. any and all claims arising out of any other laws and regulations relating to employment or
employment discrimination;
g. any claim for any loss, cost, damage, or expense arising out of any dispute over the
non-withholding or other tax treatment of any of the proceeds received by Employee as a result of
this Agreement; and
h. any and all claims for attorneys’ fees and costs.
Employee agrees that the release set forth in this section shall be and remain in effect in
all respects as a complete general release as to the matters released. This release does not
extend to any obligations incurred under this Agreement. This release does not release claims that
cannot be released as a matter of law, including, but not limited to Employee’s right to file a
charge with or participate in a charge by the Equal Employment Opportunity Commission or comparable
state agency against the Company (with the understanding that any such filing or participation does
not give Employee the right to recover any monetary damages against the Company; Employee’s release
of claims herein bars Employee from recovering such monetary relief from the Company).
6. Acknowledgment of Waiver of Claims under ADEA. Employee acknowledges that he is
waiving and releasing any rights he may have under the Age Discrimination in Employment Act of 1967
(“ADEA”), and that this waiver and release is knowing and voluntary. Employee agrees that this
waiver and release does not apply to any rights or claims that may arise under the ADEA after the
Effective Date of this Agreement. Employee acknowledges that the consideration given for this
waiver and release is in addition to anything of value to which Employee was already entitled.
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Employee further acknowledges that he has been advised by this writing that: (a) he should
consult with an attorney prior to executing this Agreement; (b) he has twenty-one (21) days
within which to consider this Agreement; (c) he has seven (7) days following his execution of this
Agreement to revoke this Agreement; (d) this Agreement shall not be effective until after the
revocation period has expired; and (e) nothing in this Agreement prevents or precludes Employee
from challenging or seeking a determination in good faith of the validity of this waiver under the
ADEA, nor does it impose any condition precedent, penalties, or costs for doing so, unless
specifically authorized by federal law. In the event Employee signs this Agreement and returns it
to the Company in less than the 21-day period identified above, Employee hereby acknowledges that
he has freely and voluntarily chosen to waive the time period allotted for considering this
Agreement.
7. Unknown Claims. Employee acknowledges that he has been advised to consult with
legal counsel and that he is familiar with the principle that a general release does not extend to
claims that the releaser does not know or suspect to exist in his favor at the time of executing
the release, which, if known by him, must have materially affected his settlement with the
releasee. Employee, being aware of said principle, agrees to expressly waive any rights he may
have to that effect, as well as under any other statute or common law principles of similar effect.
8. No Pending or Future Lawsuits. Employee represents that he has no lawsuits,
claims, or actions pending in his name, or on behalf of any other person or entity, against the
Company or any of the other Releasees. Employee also represents that he does not intend to bring
any claims on his own behalf or on behalf of any other person or entity against the Company or any
of the other Releasees.
9. Confidentiality. Employee agrees to maintain in complete confidence the existence
of this Agreement, the contents and terms of this Agreement, and the consideration for this
Agreement (hereinafter collectively referred to as “Separation Information”). Except as required
by law, Employee may disclose Separation Information only to his immediate family members, the
Court in any proceedings to enforce the terms of this Agreement, Employee’s undersigned counsel,
and Employee’s accountant and any professional tax advisor to the extent that they need to know the
Separation Information in order to provide advice on tax treatment or to prepare tax returns, and
must prevent disclosure of any Separation Information to all other third parties. Employee agrees
that he will not publicize, directly or indirectly, any Separation Information.
10. Trade Secrets and Confidential Information/Company Property. Employee reaffirms
and agrees to observe and abide by the terms of the Confidentiality Agreement, specifically
including the provisions therein regarding nondisclosure of the Company’s trade secrets and
confidential and proprietary information, and non-solicitation of Company employees. Employee’s
signature below constitutes his certification under penalty of perjury that he has returned all
documents and other items provided to Employee by the Company, developed or obtained by Employee in
connection with his employment with the Company, or otherwise belonging to the Company.
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11. No Cooperation. Employee agrees not to act in any manner that might damage the
business of the Company. Employee further agrees that he will not knowingly encourage, counsel, or
assist any attorneys or their clients in the presentation or prosecution of any disputes,
differences, grievances, claims, charges, or complaints by any third party against any of the
Releasees, unless under a subpoena or other court order to do so or as related directly to the ADEA
waiver in this Agreement. Employee agrees both to immediately notify the Company upon receipt of
any such subpoena or court order, and to furnish, within three (3) business days of its receipt, a
copy of such subpoena or other court order. If approached by anyone for counsel or assistance in
the presentation or prosecution of any disputes, differences, grievances, claims, charges, or
complaints against any of the Releasees, Employee shall state no more than that he cannot provide
counsel or assistance.
12. Mutual Non-Disparagement. Employee agrees to refrain from any disparagement,
defamation, libel, or slander of any of the Releasees, and agrees to refrain from any tortious
interference with the contracts and relationships of any of the Releasees. The Company also agrees
to refrain from any disparaging statements about Employee. Employee understands that the Company’s
obligations under this Paragraph extend only to the Company’s current executive officers and
members of its Board of Directors and only for so long as each officer or member is an employee or
Director of the Company. Employee shall direct any inquiries by potential future employers to the
Company’s human resources department, which shall use its best efforts to provide only the
Employee’s last position and dates of employment.
13. Breach. Employee acknowledges and agrees that any material breach of this
Agreement, unless such breach constitutes a legal action by Employee challenging or seeking a
determination in good faith of the validity of the waiver herein under the ADEA, or of any
provision of the Confidentiality Agreement shall entitle the Company immediately to recover and/or
cease providing the consideration provided to Employee under this Agreement, except as provided by
law. Except as provided by law, Employee shall also be responsible to the Company for all costs,
attorneys’ fees, and any and all damages incurred by the Company in (a) enforcing Employee’s
obligations under this Agreement or the Confidentiality Agreement, including the bringing of any
action to recover the consideration, and (b) defending against a claim or suit brought or pursued
by Employee in violation of the terms of this Agreement.
14. No Admission of Liability. Employee understands and acknowledges that this
Agreement constitutes a compromise and settlement of any and all actual or potential disputed
claims by Employee. No action taken by the Company hereto, either previously or in connection with
this Agreement, shall be deemed or construed to be (a) an admission of the truth or falsity of any
actual or potential claims or (b) an acknowledgment or admission by the Company of any fault or
liability whatsoever to Employee or to any third party.
15. Non-Solicitation. Employee agrees that for a period of twelve (12) months
immediately following the Effective Date of this Agreement, Employee shall not directly or
indirectly solicit any of the Company’s employees to leave their employment at the Company.
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16. Costs. The Parties shall each bear their own costs, attorneys’ fees, and other
fees incurred in connection with the preparation of this Agreement.
17. ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL DISPUTES ARISING OUT OF THE TERMS
OF THIS AGREEMENT, THEIR INTERPRETATION, AND ANY OF THE MATTERS HEREIN RELEASED, SHALL BE SUBJECT
TO ARBITRATION IN MARICOPA COUNTY, ARIZONA BEFORE JAMS, PURSUANT TO ITS EMPLOYMENT ARBITRATION
RULES & PROCEDURES (“JAMS RULES”). THE ARBITRATOR MAY GRANT INJUNCTIONS AND OTHER RELIEF IN SUCH
DISPUTES. THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN ACCORDANCE WITH ARIZONA
LAW, AND THE ARBITRATOR SHALL APPLY SUBSTANTIVE AND PROCEDURAL ARIZONA LAW TO ANY DISPUTE OR CLAIM,
WITHOUT REFERENCE TO ANY CONFLICT-OF-LAW PROVISIONS OF ANY JURISDICTION. TO THE EXTENT THAT THE
JAMS RULES CONFLICT WITH ARIZONA LAW, ARIZONA LAW SHALL TAKE PRECEDENCE. THE DECISION OF THE
ARBITRATOR SHALL BE FINAL, CONCLUSIVE, AND BINDING ON THE PARTIES TO THE ARBITRATION. THE PARTIES
AGREE THAT THE PREVAILING PARTY IN ANY ARBITRATION SHALL BE ENTITLED TO INJUNCTIVE RELIEF IN ANY
COURT OF COMPETENT JURISDICTION TO ENFORCE THE ARBITRATION AWARD. THE PARTIES TO THE ARBITRATION
SHALL EACH PAY AN EQUAL SHARE OF THE COSTS AND EXPENSES OF SUCH ARBITRATION, AND EACH PARTY SHALL
SEPARATELY PAY FOR ITS RESPECTIVE COUNSEL FEES AND EXPENSES; PROVIDED, HOWEVER, THAT THE ARBITRATOR
SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY, EXCEPT AS PROHIBITED BY LAW. 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. NOTWITHSTANDING THE FOREGOING, THIS SECTION 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 THIS AGREEMENT AND THE
AGREEMENTS INCORPORATED HEREIN BY REFERENCE. SHOULD ANY PART OF THE ARBITRATION AGREEMENT
CONTAINED IN THIS PARAGRAPH CONFLICT WITH ANY OTHER ARBITRATION AGREEMENT BETWEEN THE PARTIES, THE
PARTIES AGREE THAT THIS ARBITRATION AGREEMENT SHALL GOVERN.
18. Tax Consequences. The Company makes no representations or warranties with respect
to the tax consequences of the payments and any other consideration provided to Employee or made on
his behalf under the terms of this Agreement. Employee agrees and understands that he is
responsible for payment, if any, of local, state, and/or federal taxes on the payments and any
other consideration provided hereunder by the Company and any penalties or assessments thereon.
Employee further agrees to indemnify and hold the Company harmless from any claims, demands,
deficiencies, penalties, interest, assessments, executions, judgments, or recoveries by any
government agency against the Company for any amounts claimed due on account of (a) Employee’s
failure to pay or the Company’s failure to withhold, or Employee’s delayed payment of, federal or
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state taxes, or (b) damages sustained by the Company by reason of any such claims, including
attorneys’ fees and costs.
19. Authority. The Company represents and warrants that the undersigned has the
authority to act on behalf of the Company and to bind the Company and all who may claim through it
to the terms and conditions of this Agreement. Employee represents and warrants that he has the
capacity to act on his own behalf and on behalf of all who might claim through him to bind them to
the terms and conditions of this Agreement. Each Party warrants and represents that there are no
liens or claims of lien or assignments in law or equity or otherwise of or against any of the
claims or causes of action released herein.
20. No Representations. Employee represents that he has had an opportunity to consult
with an attorney, and has carefully read and understands the scope and effect of the provisions of
this Agreement. Employee has not relied upon any representations or statements made by the Company
that are not specifically set forth in this Agreement.
21. Severability. In the event that any provision or any portion of any provision
hereof or any surviving agreement made a part hereof becomes or is declared by a court of competent
jurisdiction or arbitrator to be illegal, unenforceable, or void, this Agreement shall continue in
full force and effect without said provision or portion of provision.
22. Attorneys’ Fees. Except with regard to a legal action challenging or seeking a
determination in good faith of the validity of the waiver herein under the ADEA, in the event that
either Party brings an action to enforce or effect its rights under this Agreement, the prevailing
Party shall be entitled to recover its costs and expenses, including the costs of mediation,
arbitration, litigation, court fees, and reasonable attorneys’ fees incurred in connection with
such an action.
23. Entire Agreement. This Agreement represents the entire agreement and
understanding between the Company and Employee concerning the subject matter of this Agreement and
Employee’s employment with and separation from the Company and the events leading thereto and
associated therewith, and supersedes and replaces any and all prior agreements and understandings
concerning the subject matter of this Agreement and Employee’s relationship with the Company, with
the exception of the Confidentiality Agreement, the Stock Agreements, and Paragraph 9 of the
Employment Agreement.
24. No Oral Modification. This Agreement may only be amended in a writing signed by
Employee and the Company’s Chief Executive Officer.
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25. Governing Law. This Agreement shall be governed by the laws of the State of
Arizona, without regard for choice-of-law provisions. Employee consents to personal and exclusive
jurisdiction and venue in the State of Arizona.
26. Effective Date. Each Party has seven (7) days after that Party signs this
Agreement to revoke it. This Agreement will become effective on the eighth (8th) day after
Employee signed this Agreement, so long as it has been signed by the Parties and has not been
revoked by either Party before that date (the “Effective Date”).
27. Counterparts. This Agreement may be executed in counterparts and by facsimile,
and each counterpart and facsimile shall have the same force and effect as an original and shall
constitute an effective, binding agreement on the part of each of the undersigned.
28. Voluntary Execution of Agreement. Employee understands and agrees that he
executed this Agreement voluntarily, without any duress or undue influence on the part or behalf of
the Company or any third party, with the full intent of releasing all of his claims against the
Company and any of the other Releasees. Employee acknowledges that:
| (a) | he has read this Agreement; | ||
| (b) | he has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of his own choice or has elected not to retain legal counsel; | ||
| (c) | he understands the terms and consequences of this Agreement and of the releases it contains; and | ||
| (d) | he is fully aware of the legal and binding effect of this Agreement. |
[the remainder of this page left intentionally blank]
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IN WITNESS WHEREOF, the Parties have executed this Agreement on the respective dates set forth
below.
| Xxxx Xxxx, an individual | ||||||||
Dated: |
||||||||
| Xxxx Xxxx | ||||||||
| Limelight Networks, Inc. | ||||||||
Dated:
|
By | |||||||
| Name: | ||||||||
| Title: | ||||||||
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