Delaware
|
7389 | 20-1677033 | ||
(State or other jurisdiction
of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Mark L. Reinstra, Esq.
Mario M. Rosati, Esq. Alexander D. Phillips, Esq. Wilson Sonsini Goodrich & Rosati, P.C. 650 Page Mill Road Palo Alto, CA 94304-1050 (650) 493-9300 |
Kevin P. Kennedy, Esq.
Simpson Thacher & Bartlett LLP 2550 Hanover Street Palo Alto, CA 94304 (650) 251-5000 |
The
information in this prospectus is not complete and may be
changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities nor does it seek an offer to buy these securities in
any jurisdiction where the offer or sale is not permitted.
|
Per
Share
|
Total
|
|||||||
Initial public offering price
|
$ | $ | ||||||
Underwriting discount
|
||||||||
Proceeds, before expenses, to
Limelight Networks
|
||||||||
Proceeds, before expenses, to the
selling stockholders
|
Goldman, Sachs & Co. | Morgan Stanley |
Jefferies & Company | Piper Jaffray |
Global, High Performance Content Delivery Network video music games social media LIMELIGHT NETWORKS TM |
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Continuing to focus on customers with rich media content, a
market which we believe represents a stable and growing business
opportunity;
Expanding our CDN infrastructure to address significant growth
opportunities and increase our market penetration in key
international markets, including Europe and the Asia Pacific
region;
Continuing to innovate in order to enhance our content delivery
capabilities;
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Expanding our CDN capacity to further advantages associated with
the scale of our network;
Enhancing our sales and distribution channels to broaden our
customer relationships and deepen our penetration of existing
customer accounts; and
Expanding our partner relationships to further complement our
service offerings.
the limited operating history in our market, which makes
evaluating our business and future prospects difficult;
the possibility that we might not manage our future growth
effectively;
the possibility that we could be permanently enjoined from
offering our CDN services as a result of the patent infringement
lawsuit filed against us by Akamai Technologies, Inc. and the
Massachusetts Institute of Technology, which is similar to other
lawsuits in which the same plaintiffs have been at least
partially successful in the past;
the highly competitive nature of the CDN market, and the adverse
consequences if we are unable to compete effectively; and
the possibility that rapidly evolving technologies or new
business models could cause demand for our CDN services to
decline or could cause these services to become obsolete.
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Common stock offered by Limelight Networks
shares
Common stock offered by the selling stockholders
shares
Common stock to be outstanding after this offering
shares
Use of proceeds
We expect to use the net proceeds from this offering to fund
capital expenditures for network and other equipment, as well as
for working capital and other general corporate purposes. We
currently anticipate making aggregate capital expenditures of
approximately $40.0 million to $50.0 million in each
of 2007 and 2008, which will be partially funded by the net
proceeds of this offering. In addition, we intend to use
approximately $23.8 million of the net proceeds to repay
the outstanding balance under our credit facility. We also may
use a portion of the net proceeds to acquire complementary
businesses, products, services or technologies. We will not
receive any proceeds from the sale of shares in this offering by
the selling stockholders. See Use of Proceeds.
Proposed Nasdaq Global Market symbol
LLNW
3,767,495 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2006 at a weighted
average exercise price of $4.47 per share;
65,390 shares of common stock issuable upon exercise of a
warrant outstanding as of December 31, 2006 at an exercise
price of $0.22 per share;
602,836 shares of common stock reserved for future issuance
under our Amended and Restated 2003 Incentive Compensation Plan
as of December 31, 2006, plus an additional
950,000 shares that we reserved for issuance under this
plan in March 2007; and
5,000,000 shares of common stock reserved for future
issuance under our 2007 Equity Incentive Plan adopted in April
2007, subject to future adjustment as more fully described in
Management Employee Benefit Plans.
no exercise by the underwriters of their option to purchase up
to an
additional shares
of our common stock;
the conversion of each outstanding share of preferred stock into
one share of common stock upon the closing of this
offering; and
the filing of our amended and restated certificate of
incorporation prior to closing of this offering.
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Year Ended
December 31,
(in thousands,
except per share
data)
$
11,192
$
21,303
$
64,343
4,834
9,037
25,662
775
2,851
10,316
5,609
11,888
35,978
5,583
9,415
28,365
2,147
4,107
18,274
2,078
3,078
6,841
231
462
3,151
69
100
226
4,525
7,747
28,492
1,058
1,668
(127
)
(189
)
(955
)
(1,782
)
1
208
(48
)
(16
)
175
(236
)
(971
)
(1,399
)
822
697
(1,526
)
306
300
2,187
$
516
$
397
$
(3,713
)
$
317
$
185
$
(3,713
)
$
0.01
$
0.01
$
(0.22
)
$
0.01
$
0.01
$
(0.22
)
23,125
23,158
17,061
25,971
27,375
17,061
268
392
693
(in thousands)(4)
$
42
$
54
$
93
$
1,868
$
4,697
$
21,284
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(1)
Includes stock-based compensation as follows:
Year Ended
December 31,
2004
2005
2006
(in thousands)
$
$
$
459
14
94
6,686
329
1,660
$
14
$
94
$
9,134
(2)
In 2006, approximately $7.6 million in stock-based
compensation expense was not deductible for tax purposes by us,
which resulted in the incurrence of income tax expense despite
our having generated a loss before income taxes in this period.
See Managements Discussion and Analysis of Financial
Condition and Results of Operations Basis of
Presentation Income Tax Expense.
(3)
We define active customers as those that generated revenue for
us within 30 days of the period end.
(4)
Annual revenue per customer equals revenue for the year divided
by the number of active customers with respect to each period.
(5)
We calculate Adjusted EBITDA as follows:
Year Ended
December 31,
2004
2005
2006
(in thousands)
$
516
$
397
$
(3,713
)
844
2,951
10,542
189
955
1,782
(1
)
(208
)
306
300
2,187
$
1,854
$
4,603
$
10,590
14
94
9,134
1,560
$
1,868
$
4,697
$
21,284
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on an actual basis;
on a pro forma basis to give effect to the conversion of all
outstanding shares of preferred stock into shares of common
stock; and
on a pro forma as adjusted basis to give effect to our receipt
of net proceeds from our sale
of shares
of common stock at an assumed initial public offering price of
$ per share, the mid-point of
the range on the cover of this prospectus, after deducting the
estimated underwriting discounts and commissions and estimated
offering expenses payable by us.
As of
December 31, 2006
Pro Forma
Actual
Pro
Forma
As
Adjusted(1)
(in thousands)
$
7,611
$
7,611
$
121,461
14,033
14,033
127,883
41,784
41,784
41,784
73,928
73,928
187,778
20,415
20,415
20,415
30
36,589
36,589
150,439
(1)
Each $1.00 increase or decrease in the assumed initial public
offering price of $ per share
would increase or decrease, as applicable, our cash and cash
equivalents, working capital, total assets and total
stockholders equity by approximately
$ million, assuming the
number of shares offered by us, as set forth on the cover page
of this prospectus, remains the same and after deducting the
estimated underwriting discounts and commissions payable by us.
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failure to increase sales of our core services;
significant increases in bandwidth and rack space costs or other
operating expenses;
inability to maintain our prices relative to our costs;
failure of our current and planned services and software to
operate as expected;
loss of any significant customers or loss of existing customers
at a rate greater than our increase in new customers or our
sales to existing customers;
failure to increase sales of our services to current customers
as a result of their ability to reduce their monthly usage of
our services to their minimum monthly contractual commitment;
failure of a significant number of customers to pay our fees on
a timely basis or at all or failure to continue to purchase our
services in accordance with their contractual
commitments; and
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inability to attract high-quality customers to purchase and
implement our current and planned services.
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their satisfaction or dissatisfaction with our services;
the prices of our services;
the prices of services offered by our competitors;
mergers and acquisitions affecting our customer base; and
reductions in our customers spending levels.
our ability to increase sales to existing customers and attract
new customers to our CDN services;
the addition or loss of large customers, or significant
variation in their use of our CDN services;
costs associated with current or future intellectual property
lawsuits;
service outages or security breaches;
the amount and timing of operating costs and capital
expenditures related to the maintenance and expansion of our
business, operations and infrastructure;
the timing and success of new product and service introductions
by us or our competitors;
the occurrence of significant events in a particular period that
result in an increase in the use of our CDN services, such as a
major media event or a customers online release of a new
or updated video game;
changes in our pricing policies or those of our competitors;
the timing of recognizing revenue;
stock-based compensation expenses associated with attracting and
retaining key personnel;
limitations of the capacity of our content delivery network and
related systems;
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the timing of costs related to the development or acquisition of
technologies, services or businesses;
general economic, industry and market conditions and those
conditions specific to Internet usage and online businesses;
limitations on usage imposed by our customers in order to limit
their online expenses; and
geopolitical events such as war, threat of war or terrorist
actions.
13
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cease selling, incorporating or using products or services that
incorporate the challenged intellectual property;
pay substantial damages;
obtain a license from the holder of the infringed intellectual
property right, which license may not be available on reasonable
terms or at all; or
redesign products or services.
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increased expenses associated with sales and marketing,
deploying services and maintaining our infrastructure in foreign
countries;
competition from local content delivery service providers, many
of which are very well positioned within their local markets;
unexpected changes in regulatory requirements resulting in
unanticipated costs and delays;
interpretations of laws or regulations that would subject us to
regulatory supervision or, in the alternative, require us to
exit a country, which could have a negative impact on the
quality of our services or our results of operations;
longer accounts receivable payment cycles and difficulties in
collecting accounts receivable;
corporate and personal liability for violations of local laws
and regulations;
currency exchange rate fluctuations; and
potentially adverse tax consequences.
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implementing customer orders for services;
delivering these services; and
timely billing for these services.
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variations in our operating results;
announcements of technological innovations, new services or
service enhancements, strategic alliances or significant
agreements by us or by our competitors;
commencement or resolution of, or our involvement in,
litigation, particularly our current litigation with Akamai and
MIT;
recruitment or departure of key personnel;
changes in the estimates of our operating results or changes in
recommendations by any securities analysts that elect to follow
our common stock;
developments or disputes concerning our intellectual property or
other proprietary rights;
the gain or loss of significant customers;
market conditions in our industry, the industries of our
customers and the economy as a whole; and
adoption or modification of regulations, policies, procedures or
programs applicable to our business.
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authorize the issuance of blank check preferred
stock that could be issued by our board of directors to thwart a
takeover attempt;
establish a classified board of directors, as a result of which
the successors to the directors whose terms have expired will be
elected to serve from the time of election and qualification
until the third annual meeting following their election;
require that directors only be removed from office for cause and
only upon a majority stockholder vote;
provide that vacancies on the board of directors, including
newly created directorships, may be filled only by a majority
vote of directors then in office;
limit who may call special meetings of stockholders;
prohibit stockholder action by written consent, requiring all
actions to be taken at a meeting of the stockholders; and
require supermajority stockholder voting to effect certain
amendments to our restated certificate of incorporation and
amended and restated bylaws.
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anticipated trends and challenges in our business and the
markets in which we operate;
our ability to compete in our industry and innovation by our
competitors;
our ability to establish and maintain intellectual property
rights, including the timing and potential consequences of our
current lawsuit with Akamai and MIT;
our expectations regarding our expenses, sales and operations;
our ability to attract and retain customers;
our ability to anticipate market needs or develop new or
enhanced services to meet those needs;
our ability to manage growth and to expand our infrastructure;
our ability to manage expansion into international markets and
new industries;
our ability to hire and retain key personnel;
our expectations regarding the use of proceeds from this
offering;
our ability to successfully identify and manage any potential
acquisitions; and
our anticipated cash needs and our estimates regarding our
capital requirements and our need for additional financing.
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26
on an actual basis;
on a pro forma basis reflecting the filing of our amended and
restated certificate of incorporation and the conversion of each
outstanding share of preferred stock into one share of common
stock upon the closing of this offering; and
On a pro forma as-adjusted basis to give effect to the sale of
shares of common stock by us in this offering at an assumed
initial public offering price of
$ per share, the mid-point of
the range set forth on the cover page of this prospectus, and
after deducting the estimated underwriting discounts and
estimated offering expenses payable by us.
As of
December 31, 2006
Pro Forma
(in thousands,
except share
and per share data)
$
7,611
$
7,611
$
121,461
20,415
20,415
20,415
30
14
44
41,712
41,712
(113
)
(113
)
(113
)
(5,054
)
(5,054
)
(5,054
)
36,589
36,589
150,439
$
57,004
$
57,004
$
170,854
(1)
Each $1.00 increase or decrease in the assumed initial public
offering price of $ per share
would increase or decrease, as applicable, the amount of
additional paid-in capital, total stockholders equity and
total capitalization by approximately
$ million, assuming the
number of shares
27
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offered by us, as set forth on the cover of this prospectus,
remains the same and after deducting the estimated underwriting
discounts and commissions payable by us.
3,767,495 shares of common stock issuable upon exercise of
options outstanding as of December 31, 2006 at a weighted
average exercise price of $4.47 per share;
65,390 shares of common stock issuable upon exercise of a
warrant outstanding as of December 31, 2006 at an exercise
price of $0.22 per share;
602,836 shares of common stock reserved for future issuance
under our Amended and Restated 2003 Incentive Compensation Plan
as of December 31, 2006, plus an additional
950,000 shares that we reserved for issuance under this
plan in March 2007; and
5,000,000 shares of common stock reserved for future
issuance under our 2007 Equity Incentive Plan adopted in April
2007, subject to future adjustment as more fully described in
Management Employee Benefit Plans.
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$
$
$
Shares
Purchased
Total
Consideration
Average Price
%
$
%
$
100.0
%
$
100.0
%
29
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pro forma as adjusted net tangible book value per share would
increase from
$ to
$ ,
resulting in a decrease in dilution to new investors of
$
per share;
our existing stockholders, including the holders of these
options and this warrant, would
own % and our new investors would
own % of the total number of shares
of our common stock outstanding upon the completion of this
offering; and
our existing stockholders, including the holders of these
options and this warrant, would have
paid % of total consideration, at
an average price per share of
$ ,
and our new investors would have
paid % of total consideration.
30
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Limelight
Networks, LLC
Limelight
Networks, Inc.
Eight Months
Four Months
Year Ended
Ended
Ended
December 31,
August 31,
December 31,
Year Ended
December 31,
(in thousands,
except per share data)
$
1,908
$
3,353
$
1,677
$
11,192
$
21,303
$
64,343
1,164
1,909
954
4,834
9,037
25,662
108
168
84
775
2,851
10,316
1,272
2,077
1,038
5,609
11,888
35,978
636
1,277
638
5,583
9,415
28,365
798
865
432
2,147
4,107
18,274
708
689
345
2,078
3,078
6,841
52
101
51
231
462
3,151
23
25
13
69
100
226
1,581
1,681
840
4,525
7,747
28,492
(945
)
(404
)
(202
)
1,058
1,668
(127
)
(45
)
(46
)
(23
)
(189
)
(955
)
(1,782
)
1
208
11
6
(48
)
(16
)
175
(45
)
(35
)
(17
)
(236
)
(971
)
(1,399
)
(990
)
(439
)
(219
)
822
697
(1,526
)
(34
)
(17
)
306
300
2,187
$
(990
)
$
(405
)
$
(202
)
$
516
$
397
$
(3,713
)
$
(607
)
$
317
$
185
$
(3,713
)
$
(0.03
)
$
0.01
$
0.01
$
(0.22
)
$
(0.03
)
$
0.01
$
0.01
$
(0.22
)
23,079
23,125
23,158
17,061
23,079
25,971
27,375
17,061
31
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(1)
Includes stock-based compensation
as follows:
Limelight
Networks, LLC
Limelight
Networks, Inc.
Eight Months
Four Months
Year Ended
Ended
Ended
December 31,
August 31,
December 31,
Year Ended
December 31,
(in thousands)
$
$
$
$
$
$
459
14
94
6,686
329
1,660
$
$
$
$
14
$
94
$
9,134
(2)
In 2006, approximately
$7.6 million in stock-based compensation expense was not
deductible for tax purposes by us, which resulted in us
incurring income tax expense despite our having generated a loss
before income taxes in this period. See Managements
Discussion and Analysis of Financial Condition and Results of
Operations Basis of Presentation Income
Tax Expense.
Limelight
Networks,
LLC
Limelight
Networks, Inc.
December 31,
(in thousands)
$
25
$
97
$
536
$
1,536
$
7,611
(1,122
)
(636
)
(695
)
(1,827
)
14,033
440
1,080
3,018
11,986
41,784
735
2,127
5,718
19,583
73,928
461
8,809
20,415
2
4
4
30
857
174
1,239
1,823
36,589
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51
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Year Ended
December 31,
2004
2005
2006
100
%
100
%
100
%
43
42
40
7
13
16
50
56
56
50
44
44
19
19
28
19
14
11
2
2
5
1
1
41
36
44
9
8
(2
)
(5
)
(3
)
1
(2
)
(5
)
(2
)
7
3
(2
)
3
1
4
4
%
2
%
(6
)%
33
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34
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increase our revenue by adding customers and limiting customer
cancellations and terminations, as well as increasing the amount
of monthly recurring revenue that we derive from our existing
customers;
manage the prices we charge for our services, as well as the
costs associated with operating our network;
successfully manage our litigation with Akamai and MIT to
conclusion; and
prevent disruptions to our services and network due to accidents
or intentional attacks.
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fees related to bandwidth provided by network operators;
fees paid for the lease of private line capacity for our
backbone;
fees paid for co-location services, which are the housing of
servers in third-party data centers;
network operations employee costs, including stock-based
compensation expense; and
costs associated with licenses.
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payroll and related costs, including stock-based compensation
expense for executive, finance, business applications, human
resources and other administrative personnel;
fees for professional services and litigation expenses; and
other expenses such as insurance, allowance for doubtful
accounts and corporate office rent.
37
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39
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40
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In July 2006, we sold a controlling interest to an investor
group led by entities affiliated with Goldman, Sachs &
Co. through the issuance of shares of Series B preferred
stock, at a price of $4.89 per share, for total aggregate
consideration of $130.0 million. As part of the
transaction, we repurchased 20,880,000 shares of common stock
for an aggregate net consideration of $102.1 million.
In the fourth quarter of 2006, we appointed both a Chief
Executive Officer and a Chief Financial Officer with past public
company roles in a similar capacity.
Revenue growth in 2006 exceeded 200%, to $64.3 million
compared to revenue in 2005 of $21.3 million.
Original
Reassessed
Fair Value
Fair Value
$
0.40
$
2.00
0.40
5.27
1.28
8.70
1.28
10.04
1.28
9.23
(1)
(1)
The December 2006 reassessed fair value per share price
decreased from the November 2006 reassessed fair value per share
price as a result of our experiencing a reduction of network
traffic from two significant customers.
41
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Year Ended
December 31,
Increase
Percent
(in thousands)
$
21,303
$
64,343
$
43,040
202
%
Year Ended
December 31,
Increase
Percent
(in thousands)
$
11,888
$
35,978
$
24,090
203
%
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Year Ended
December 31,
(in millions)
$
7.8
$
20.9
2.9
10.3
$
1.6
0.5
1.7
0.5
0.7
1.0
$
11.9
$
36.0
Year Ended
December 31,
_
_
Increase
Percent
(in thousands)
$
4,107
$
18,274
$
14,167
345
%
Year Ended
December 31,
(in millions)
$
0.1
$6.7
0.2
3.4
1.9
3.7
0.1
0.7
1.8
3.8
$
4.1
$18.3
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Year Ended
December 31,
Increase
Percent
(in thousands)
$
3,078
$
6,841
$
3,763
122
%
Year Ended
December 31,
(in millions)
$
2.2
$
4.3
0.7
1.3
0.3
0.1
0.4
0.1
0.5
$
3.1
$
6.8
Increase
Percent
(in thousands)
$
462
$
3,151
$
2,689
582
%
Year Ended
December 31,
(in millions)
$
$
1.7
0.5
1.5
$
0.5
$
3.2
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Increase
Percent
(in thousands)
$
955
$
1,782
$
827
87
%
Year Ended
December 31,
Increase
Percent
(in thousands)
$
$
208
$
208
N/A
Year Ended
December 31,
Increase
Percent
2005
2006
(in thousands)
$
(16
)
$
175
$
191
1,194
%
Year Ended
December 31,
_
_
Increase
Percent
(in thousands)
$
300
$
2,187
$
1,887
629
%
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Year Ended
December 31,
Increase
Percent
(in thousands)
$
11,192
$
21,303
$
10,111
90
%
Year Ended
December 31,
_
_
Increase
Percent
(in thousands)
$
5,609
$
11,888
$
6,279
112
%
Year Ended
December 31,
(in millions)
$
3.6
$
7.8
0.8
2.9
0.3
0.5
0.9
0.7
$
5.6
$
11.9
Year Ended
Increase
Percent
(in thousands)
$
2,147
$
4,107
$
1,960
91
%
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Year Ended
December 31,
(in millions)
$
0.9
$
1.9
0.1
0.1
0.2
0.2
0.1
0.9
1.8
$
2.1
$
4.1
Year Ended
Increase
Percent
(in thousands)
$
2,078
$
3,078
$
1,000
48
%
Year Ended
December 31,
(in millions)
$
1.4
$
2.2
0.5
0.7
0.1
0.1
0.1
0.1
$
2.1
$
3.1
Year Ended
December 31,
Increase
Percent
(in thousands)
$
231
$
462
$
231
100
%
48
Table of Contents
Year Ended
Increase
Percent
(in thousands)
$
189
$
955
$
776
405
%
Year Ended
December 31,
Increase
Percent
(in thousands)
$
1
$
$
(1
)
100
%
Year Ended
December 31,
Increase
Percent
(in thousands)
$
(48
)
$
(16
)
$
(32
)
67
%
Year Ended
December 31,
Increase
Percent
(in thousands)
$
306
$
300
$
(6
)
2
%
49
Table of Contents
Three Months
Ended
Mar 31,
Jun 30,
Sep 30,
Dec 31,
Mar 31,
Jun 30,
Sep 30,
Dec 31,
(in thousands)
$
3,593
$
4,475
$
5,638
$
7,597
$
10,838
$
14,841
$
17,057
$
21,607
1,585
2,057
2,496
2,899
3,807
5,231
7,300
9,324
405
550
803
1,093
1,473
2,035
2,900
3,908
1,990
2,607
3,299
3,992
5,280
7,266
10,200
13,232
1,603
1,868
2,339
3,605
5,558
7,575
6,857
8,375
687
826
968
1,626
1,571
2,231
4,616
9,856
587
724
777
990
1,034
1,497
1,860
2,450
88
109
119
146
321
437
1,193
1,200
22
25
26
27
28
44
63
91
1,384
1,684
1,890
2,789
2,954
4,209
7,732
13,597
219
184
449
816
2,604
3,366
(875
)
(5,222
)
(101
)
(304
)
(245
)
(305
)
(505
)
(519
)
(340
)
(418
)
79
129
(16
)
70
105
(101
)
(304
)
(245
)
(321
)
(505
)
(519
)
(191
)
(184
)
118
(120
)
204
495
2,099
2,847
(1,066
)
(5,406
)
51
(52
)
88
213
829
1,125
544
(311
)
$
67
$
(68
)
$
116
$
282
$
1,270
$
1,722
$
(1,610
)
$
(5,095
)
50
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Three Months
Ended
Mar 31,
Jun 30,
Sep 30,
Dec 31,
Mar 31,
Jun 30,
Sep 30,
Dec 31,
100
%
100
%
100
%
100
%
100
%
100
%
100
%
100
%
44
46
44
38
35
35
43
43
11
12
14
14
14
14
17
18
55
58
59
52
49
49
60
61
45
42
41
48
51
51
40
39
19
19
17
21
15
15
27
46
16
16
14
13
10
10
11
11
2
2
2
2
3
3
7
6
1
1
1
39
38
33
37
28
28
45
63
6
4
8
11
23
23
(5
)
(24
)
(3
)
(7
)
(4
)
(4
)
(5
)
(4
)
(2
)
(2
)
1
1
(3
)
(7
)
(4
)
(4
)
(5
)
(3
)
(1
)
(1
)
3
(3
)
4
7
19
19
(6
)
(25
)
1
(1
)
2
3
8
8
3
(1
)
2
%
(2
)%
2
%
4
%
11
%
11
%
(9
)%
(24
)%
Table of Contents
52
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53
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12
13 to 24
25 to 36
36 to 48
Total
Months
Months
Months
Months
Thereafter
(in thousands)
$
15,748
$
9,310
$
4,809
$
1,295
$
181
$
153
4,265
3,539
536
188
2
1,735
524
485
344
314
68
21,748
13,373
5,830
1,827
497
221
277
272
5
23,818
2,938
5,293
5,293
5,293
5,001
5,013
1,777
1,422
1,011
605
198
$
50,856
$
18,360
$
12,550
$
8,131
$
6,395
$
5,420
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EBITDA and Adjusted EBITDA do not reflect our cash expenditures
or future requirements for capital expenditures or contractual
commitments;
they do not reflect changes in, or cash requirements for, our
working capital needs;
they do not reflect the interest expense, or the cash
requirements necessary to service interest or principal
payments, on our debt;
they do not reflect income taxes or the cash requirements for
any tax payments;
although depreciation and amortization are non-cash charges, the
assets being depreciated and amortized often will have to be
replaced in the future, and EBITDA and Adjusted EBITDA do not
reflect any cash requirements for such replacements;
while stock-based compensation is a component of operating
expense, the impact on our financial statements compared to
other companies can vary significantly due to such factors as
assumed life of the options and assumed volatility of our common
stock; and
other companies may calculate EBITDA and Adjusted EBITDA
differently than we do, limiting their usefulness as comparative
measures.
2004
2005
2006
(in thousands)
$
516
$
397
$
(3,713
)
844
2,951
10,542
189
955
1,782
(1
)
(208
)
306
300
2,187
$
1,854
$
4,603
$
10,590
14
94
9,134
1,560
$
1,868
$
4,697
$
21,284
(1)
During 2006, we repurchased stock in a transaction with a total
value of $102.1 million. Selling stockholders agreed to
hold $10.1 million of the proceeds to offset specific
claims for reimbursement associated with the Akamai lawsuit and
other undisclosed obligations that may arise. During 2006, we
had $1.6 million of litigation costs subject to
reimbursement from this escrow.
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consumption and distribution of rich media content are expanding
rapidly;
older alternatives for delivering rich media content over basic
Internet connections are not scaling well; and
a new set of technical, management and economic requirements
have emerged for content providers to meet the needs of
demanding consumers of rich media content.
Proliferation of broadband Internet
connections.
According to a report from
Strategy Analytics, nearly half of all North American households
had broadband Internet access in 2006, with broadband Internet
penetration expected to reach 73% by 2010. In addition, IDC
estimates that the average speed of downstream access for a
broadband connection, the speed at which an end-user accesses
media files, doubled from the third quarter of 2004 to the same
quarter of 2006 (Market Analysis: U.S. Broadband Services
2006-2010 Forecast, IDC, September 2006). The
proliferation of broadband Internet connections has provided an
increasing number of users with the capability to access rich
media content efficiently.
Consumption of media via the Internet is rivaling
consumption via other media channels.
The
proliferation of broadband Internet has fundamentally changed
the way that consumers access and interact with media content.
According to a recent survey by Forrester Research, Inc.,
consumers between the ages of
18-26
in
U.S. online households spend 12.2 hours per week using the
Internet, compared to 10.6 hours per week watching
television (State of the Consumers and Technology:
Benchmark 2006, Forrester Research, Inc., July 2006). In
addition, eMarketer estimates that at the end of 2006, nearly
60% of all Internet users regularly watched videos online. That
number is expected to climb to 80% by the end of 2010.
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Consumers desire on-demand access to a broad range of
personalized media content.
Through
technologies like Internet search, personal digital video
recorders,
video-on-demand
and social media platforms, consumers are increasingly
accustomed to immediate, on-demand access to media content,
including videos, music and photos provided by media or content
providers or by users themselves.
Proliferation of Internet-connected
devices.
The proliferation of devices that
are capable of connecting to the Internet, such as MP3 players,
mobile phones and videogame consoles, has given users even more
control and flexibility over how and where they access and use
media content from the Internet.
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Delivering a consistently high-quality media
experience.
User experience is critical for
content providers because consumers increasingly expect a
high-quality experience, will not tolerate interruptions or
inconsistency in the delivery of content, and may never return
to a particular media provider if that provider is unable to
meet their expectations. A media stream, for example, should
begin immediately and play continuously without interruption
every time a customer accesses that stream.
Delivering expansive content libraries of rich
media.
Consumers, particularly those who are
accustomed to broadband-enabled Internet services such as
high-quality television and radio, increasingly demand the
ability to consume any form of media content online. To meet
this demand, traditional media companies are moving their
enormous libraries of content, such as television shows and
movies, online. At the same time, emerging content businesses,
such as user-generated content companies, are creating expansive
libraries of rich media. Users expect a consistent media
experience across every title in these large libraries, for each
title regardless of its popularity, each time it is viewed.
Ability to scale content delivery capacity to handle
rapidly accelerating demand and diversity of audience
interest.
Content providers also need to
scale delivery of their content smoothly as the size of their
audience increases. When a large number of users simultaneously
access a particular website, the content provider must be able
to meet that surge in demand without making users wait. Rapidly
accelerating demand can be related to a single event, such as a
major news or sporting event, or can be spread across an entire
library of content, such as when a social media website surges
in popularity.
Reliability.
Throughout the path data
must traverse to reach a user, problems with the underlying
infrastructure supporting the Internet can occur. For instance,
servers can fail, or network connections can drop. Avoiding
these problems is important to content providers because
network, datacenter, or service provider outages can mean
frustrated users, lost audiences and missed revenue
opportunities.
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Flexibility and manageability.
Content
providers are making significant investments in preparing their
media libraries for delivery over the Internet. Once content is
ready for Internet distribution, content providers must be able
to support a wide range of formats, begin to distribute their
content quickly, and monitor their delivery activities.
Managing delivery costs.
Managing the
cost of content delivery is important for content providers so
that they can maximize profits. As a result, the combination of
major capital outlays and operating expenditures required to
build and maintain large server clusters, peak period capacity,
extensive Internet backbone networks and multiple connections to
global broadband access networks is simply not practical for
most companies. As users increasingly demand access to large
files and media streams, the infrastructure costs associated
with providing this content are rising.
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61
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Limelight Networks Content Delivery (HTTP/Web delivery);
Limelight Networks Streaming Media (Streaming delivery); and
Limelight Networks Custom CDN.
LUX.
Web-based management and reporting
console that allows customers to manage their provisioned
Limelight services, as well as monitor usage, activity, and
delivery metrics via customizable CDN reporting.
StorageEdge.
Service option for storing
a customers content library within our CDN architecture,
ensuring consistent, high-quality delivery of every file, from
the most to the least popular, across the customers entire
library.
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Download Manager.
Client-deployed
software for managing downloads that enables end-users to
download multiple objects with one click.
Traffic Services Manager.
Service
management option that allows our customers to designate and
control traffic requests divided among multiple service delivery
infrastructures, including Limelight Networks, providing the
customer an easy way to manage network redundancy among internal
and externally-provisioned delivery infrastructures.
Geo-Compliance.
Content rights
compliance offering that allows our customer to define the
specific geographic location of a user prior to fulfilling the
users content request, allowing the content provider to
manage geographic restrictions for licensed content distribution.
MediaVault.
Security offering for
Content Delivery and Streaming Media customers that securely
associates digital media or stream locations (URLs) with
authorized viewers, protecting content from access by
unauthorized users.
Content Control.
Performance management
offering for Content Delivery that allows our customers to
manage costs by limiting the speed of digital media deliveries
to their end-users.
Log Access.
Access to an aggregated set
of detailed activity logs (on-demand or live), allowing our
customers to access detailed content and user information from
our edge delivery servers.
API.
Programmatic interface to
Limelight services and reporting which allows a customers
applications to directly access and pull information into their
systems, as well as directly manage Limelight services as part
of the customers application interface and workflow.
We have built and deployed a globally distributed network of
more than 4,000 servers specially configured for the delivery of
rich media content at 52 points of presence, or POPs, and 16
logical CDN locations, or a group of POPs, in the U.S., Europe
and Asia. Content consumers can connect to Limelight servers
that are closer to them, in network terms, than a content
providers own servers, eliminating much of the Internet
congestion and inconsistent network
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performance that could affect the delivery of content. This
reduces or eliminates the visible symptoms of poor Internet
performance, including slow start times and stopping or skipping
during playback.
Our architecture consists of dense clusters of
specially-configured edge servers and storage servers deployed
at each POP. A logical CDN location is provisioned with hundreds
of edge servers, which users connect to and which store our
customers most popular content files. A logical CDN
location also contains one or more intermediate storage systems,
which act as large, deep media file caches and store less
frequently requested content files. When an edge server in the
logical CDN location needs a file that it does not have, it can
often retrieve that object from the intermediate storage system,
rather than from a customers website servers or from
another location in our system. These retrievals from
intermediate storage systems are very fast, because they occur
across a local area or metro area ethernet network, rather than
across our backbone or across the public Internet. This
architecture enables us to maximize the amount of content stored
at each CDN location without requiring that we store every
content file on every edge server.
We have configured each of our CDN locations to connect with
hundreds of networks. They are also equipped with the capacity
to support additional network connections as needed. This design
allows us to provide maximum scalability and responsiveness as
end-user demand increases. In addition, any server within a CDN
location can send and receive data via any network at that
location. This
any-to-any
capability allows us to use our network connections to the
greatest extent possible, without having to simultaneously
optimize servers and networks, as some CDNs do. Each of our edge
servers has access to whichever locally-attached network is best
for each delivery.
In aggregate, our logical CDN locations are directly connected
to more than 600 broadband Internet access networks around the
world. Whenever possible, we use these interconnections to place
content objects directly on users access networks, which
means those users requested files reach them without ever
traversing the public Internet. We believe that there is no
faster method available for delivering content to a user. More
than half of our total content delivery volume is delivered in
this fashion.
When we are not connected directly to the users broadband
Internet access provider, we use commercial Internet carriers to
deliver content objects to the users broadband provider.
We maintain commercial relationships with many of the
worlds largest Internet carriers, including AT&T,
Deutsche Telekom, France Telecom and Global Crossing, with
multiple commercial Internet carrier connections at each of our
CDN locations.
Our CDN locations in the United States and Europe are connected
together via a dedicated optical backbone, which we operate,
that includes redundant 10 gigabit per second connections to
every location. Our logical CDN locations in Asia are connected
to our U.S./Europe network via managed circuits. By connecting
all of our locations with a network infrastructure that we
operate and on which we manage the traffic flows (rather than
relying on the often-congested public Internet), we are able to
rapidly move objects around our network when needed to service
user requests. Also, using our own network, rather than relying
on the public Internet, means that the stream our edge server
acquires will be as high-quality as the stream we receive from
our customer.
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We have developed proprietary software that manages our content
delivery system. This software consists of several components:
Edge server software for managing download and streaming
delivery of content objects;
Software for assigning resources within our infrastructure and
for systematically improving our infrastructure over time as our
customers and infrastructure components change;
Intermediate cache server systems and software for storing
customer content libraries; and
Customer portal and customer reporting software.
Using our proprietary edge server software, we handle both
download and streaming deliveries across what we believe is one
of the broadest range of formats in our industry, including
Adobe Flash, MP3 audio, QuickTime, RealNetworks RealPlayer and
Windows Media.
Video:
MSNBC, Viacom.
Music:
RadioIO, ABC Radio.
Games:
Microsoft (XBOX), Valve
Corporation.
Software:
Microsoft, Adobe Systems.
Social Media:
MySpace.com.
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Performance, as measured by file delivery time and end-user
media consumption rates;
Scalability;
Proprietary software designed to efficiently locate and deliver
large media files;
Ease of implementation;
Flexibility in designing delivery systems for unique content
types and mixes;
Reliability; and
Cost efficiency.
Telesales force.
Our telesales force is
responsible for managing direct sales opportunities within the
mid-market within North America.
Field sales force.
In October 2006, we
began to develop a field sales force and have since hired
11 sales personnel in various geographic markets. This
sales force is responsible for managing direct sales
opportunities in major accounts in North America, Europe and the
Asia Pacific region.
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Distribution partners.
We have certain
customers who incorporate our services into their offerings, and
we also maintain relationships with a number of resellers and
distribution partners.
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69
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97
41
President, Chief Executive Officer
and Chairman
40
Co-Founder, Chief Technical
Officer and Director
50
Co-Founder and Chief Strategy
Officer
54
Chief Financial Officer and
Secretary
39
Senior Vice President of Worldwide
Sales, Marketing and Services
49
Director
52
Director
46
Director
36
Co-Founder and Director
39
Director
59
Director
50
Director
37
Senior Vice President of
International Sales & Global Account Management
37
Vice President of North American
Sales and Business Development Channels
43
Co-Founder
(1)
Member of our Audit Committee.
(2)
Member of our Compensation Committee
(3)
Member of our Nominating and Governance Committee
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71
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72
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Our Class I directors will be Messrs. Goad, Kaplan and
Lunsford;
Our Class II directors will be Messrs. Gleberman,
Harman and Perrone; and
Our Class III directors will be Messrs. Peterschmidt,
Raciborski and Valenzuela.
73
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evaluate the independent auditors qualifications,
independence and performance;
determine the engagement of the independent auditors;
approve the retention of the independent auditors to perform any
proposed permissible non-audit services;
monitor the rotation of partners of the independent auditors on
the Company engagement team as required by law;
review our financial statements and review our critical
accounting policies and estimates; and
review and discuss with management and the independent auditors
the results of the annual audit and our quarterly financial
statements.
review and recommend policy relating to compensation and
benefits of our officers and employees;
review and approve corporate goals and objectives relevant to
compensation of the Chief Executive Officer and other senior
officers;
evaluate the performance of our officers in light of established
goals and objectives;
set compensation of our officers based on its evaluations;
administer the issuance of stock options and other awards under
our stock plans; and
review and evaluate, at least annually, its own performance and
that of its members, including compliance with the committee
charter.
74
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assess the performance of the board of directors;
direct guidelines for the composition of our board of
directors; and
review and administer our corporate governance guidelines.
75
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76
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77
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78
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Stock
Option
All Other
$
38,333
$
100,000
$
1,688,000
$
367,000
$
322
$
2,193,655
220,000
326,041
1,481,000
11,476
2,038,517
22,917
44,000
18,000
28
84,945
180,000
326,041
1,483,000
11,265
2,000,306
220,000
326,041
1,480,000
8,537
2,034,578
180,000
40,000
3,000
3,867
226,867
140,453
30,000
1,800
154,730
326,983
(1)
Amounts represent stock-based compensation expense for fiscal
year 2006 for stock and option awards under SFAS 123R as
discussed in Note 8, Stockholders Equity subheading
Incentive Compensation Plan, of the Notes to
Consolidated Financial Statements included elsewhere in this
prospectus.
(2)
Represents amounts paid for health and life insurance for the
employee and the employees family members and, in the case
of Mr. Greco, includes $150,863 in sales commissions.
(3)
Mr. Lunsfords annual salary upon completion of this
offering will be $400,000.
(4)
Mr. Hales annual salary upon completion of this
offering will be $275,000.
(5)
Mr. Gordon served as our principal financial officer until
November 2006.
(6)
Mr. Rinehart served as our Chief Executive Officer until
October 2006.
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All Other
All Other
Option Awards:
Exercise or
Grant Date
Stock Awards:
Number of
Base Price
Fair Value
Number of
Securities
of Option
of Stock
Shares of
Underlying
Awards
and Option
11/20/06
500,000
(2)
$
9.80
$
3,567,000
11/20/06
500,000
(3)
19.80
2,971,000
10/20/06
1,000,000
(4)
10,040,000
08/02/06
625,000
(5)
0.40
3,135,000
12/01/06
70,000
(2)
10.00
448,000
12/01/06
230,000
2,122,900
08/02/06
625,000
(5)
0.40
448,000
08/02/06
525,000
(5)
0.40
448,000
(1)
Amounts represent total fair value of stock and option awards
granted in 2006 under SFAS 123R as discussed in Note 8,
Stockholders Equity subheading Incentive
Compensation Plan, of the Notes to Consolidated Financial
Statements included elsewhere in this prospectus.
(2)
Vests
1
/
4
after
one year and approximately
1
/
48
per
month thereafter. Option expires 10 years from the date of
grant.
(3)
Vests
1
/
48
after
two years and approximately
1
/
48
per
month thereafter. Option expires 10 years from the date of
grant.
(4)
Twelve and one-half percent (12.5%) of the shares vested on the
grant date. An additional twelve and one-half percent (12.5%) of
the shares vest on the
120
th
day
after the grant date, and
1
/
48
of
the shares vest each month thereafter.
(5)
Vests approximately
1
/
12
per
month. The board of directors has authorized the early exercise
of this grant. Option expires 10 years from the date of
grant.
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Stock
Awards
Equity
Incentive
Equity
Incentive
Plan Awards:
Plan Awards:
Market or
Option
Awards
Number of
Payout Value
Number of
Number of
Unearned
of Unearned
Securities
Securities
Shares, Units
Shares, Units
Underlying
Underlying
or Other
or Other
Unexercised
Unexercised
Option
Option
Rights
Rights
Options:
Options:
Exercise
Expiration
That Have
That Have
500,000
$
9.80
11/20/16
(1)
875,000
(2)
$
1,111,250
500,000
19.80
11/20/16
(3)
70,000
10.00
12/01/16
(4)
230,000
(4)
292,100
243
0.21
12/15/13
(5)
3,500
71,500
0.40
10/27/15
(6)
18,900
51,100
0.40
10/27/15
(7)
(1)
Vesting commenced November 20, 2006 and vests
1
/
4
after one year and approximately
1
/
48
per
month thereafter.
(2)
12.5% of the shares vested on the grant date, October 20,
2006. An additional 12.5% of the shares vest on the
120
th
day
after the grant date, and approximately
1
/
48
of
the shares vest on the corresponding day of each month
thereafter.
(3)
Vesting commenced November 20, 2006 and vests
1
/
48
after
two years and approximately
1
/
48
per
month thereafter.
(4)
Vesting commenced December 1, 2006 and vests
1
/
4
after one year and approximately
1
/
48
per
month thereafter.
(5)
Vesting commenced December 15, 2003 and vests
1
/
4
after one year and approximately
1
/
36
per
month thereafter.
(6)
Vesting commenced November 1, 2005 and vests
1
/
4
after
one year and approximately
1
/
36
per
month thereafter.
(7)
Vesting commenced November 1, 2005 and vests
1
/
4
after one year and approximately
1
/
48
per month thereafter.
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Option
Awards
Stock
Awards
Number of
Number of
Shares
Value
Shares
Value
Acquired on
Realized on
Acquired on
Realized on
$
125,000
$
50,000
500,000
0
(2)
625,000
0
(2)
250,000
0
(2)
625,000
0
(2)
275,000
0
(2)
625,000
0
(2)
209,772
39,857
3,807
4,073
25,000
22,000
25,410
4,828
(1)
The aggregate dollar amount realized upon the vesting of a stock
award represents the aggregate market price of the shares of our
common stock underlying the stock award on the vesting date
(assumed to be the midpoint of the price range set forth on the
cover page of this prospectus) multiplied by the shares vested
on the vesting date.
(2)
No value was realized on exercise, because the value of such
shares equaled the exercise price on the date of exercise.
82
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83
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84
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85
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86
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4% of the outstanding shares of our common stock on the last day
of the immediately preceding fiscal year;
3,000,000 shares; or
such other amount as our board of directors may determine.
87
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88
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89
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any breach of the directors duty of loyalty to us or our
stockholders;
any act or omission not in good faith or that involves
intentional misconduct or a knowing violation of law;
unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware
General Corporation Law; or
any transaction from which the director derived an improper
personal benefit.
90
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Series B
Preferred
13,966,505
7,214,515
4,789,316
553,716
91
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1,134,866 shares of our common stock from Michael and
Lauren Gordon;
50,000 shares of our common stock from Thunder Road Capital
LLC. Michael M. Gordon is a managing member of Thunder Road
Capital LLC;
2,951,872 shares of our common stock from Kaplan Group
Investments LLC. Allan M. Kaplan is a managing member of Kaplan
Group Investments LLC;
244,579 shares of our common stock from Cocoon Capital LLC.
Nathan F. Raciborski and Allan M. Kaplan are managing members of
Cocoon Capital LLC;
1,354,415 shares of our common stock from the Raciborski
Group Limited Partnership;
1,455,791 shares of common stock from Nathan F.
Raciborski;
1,735,871 shares of our common stock from the Rinehart
Family Trust dated May of 1999;
352,884 shares of our common stock from Erik W. Gabler and
Nicole A. Gabler;
123,981 shares of our common stock subject to a vested
option held by Erik W. Gabler, with an exercise price of
$0.21 per share; and
44,590 shares of our common stock subject to a vested
option held by Louis A. Greco III, with an exercise price
of $0.21 per share.
92
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93
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In February 2005, we granted Michael M. Gordon an option to
purchase 250,000 shares of our common stock at an exercise
price of $0.40 per share;
In February 2005, we granted Nathan F. Raciborski an option to
purchase 500,000 shares of our common stock at an exercise
price of $0.40 per share;
In February 2005, we granted William Rinehart an option to
purchase 275,000 shares of our common stock at an exercise
price of $0.40 per share;
In October 2005, we granted Eric W. Gabler an option to purchase
100,000 shares of our common stock at an exercise price of
$0.40 per share;
In October 2005, we granted Louis A. Greco III an option to
purchase 70,000 shares of our common stock at an exercise
price of $0.40 per share; and
In April 2007, we granted David M. Hatfield an option to
purchase 300,000 shares of our common stock at an exercise
price of $9.33 per share and options to purchase an
aggregate of 150,000 shares of our common stock at exercise
prices of $18.00 per share.
94
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95
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each person known by us to beneficially own more than 5% of our
outstanding shares of common stock;
each of our named executive officers;
each of our directors;
all of our directors and executive officers as a group; and
each selling stockholder.
Shares
Being
20,181,661
45.3
%
4,089,227
9.2
2,310,207
5.2
1,000,000
2.3
3,598,260
8.1
230,000
*
1,809,867
4.1
2,360,871
5.3
249,322
*
48,860
*
20,181,661
45.3
4,089,227
9.2
96
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Shares
Being
2,788,054
6.3
20,181,661
45.3
36,193,069
81.2
(1)
Funds affiliated with or managed by Goldman, Sachs &
Co. are GS Capital Partners V Fund, L.P.
(10,626,855 shares of Series B Preferred Stock), GS
Capital Partners V Offshore Fund, L.P. (5,489,391 shares of
Series B Preferred Stock), GS Capital Partners V
Institutional, L.P. (3,644,102 shares of Series B
Preferred Stock) and GS Capital Partners V
GmbH & Co. KG (421,313 shares of Series B
Preferred Stock) (the Goldman Sachs Funds). Voting
and dispositive power for the shares held by GS Capital
Partners V Fund, L.P. is held by its general partner
GSCP V Advisors, L.L.C., which disclaims beneficial
ownership of the shares held by GS Capital Partners V
Fund, L.P. except to the extent of its pecuniary interest
therein, if any. Voting and dispositive power for the shares
held by GS Capital Partners V Offshore Fund, L.P. is
held by its general partner GSCP V Offshore Advisors,
L.L.C., which disclaims beneficial ownership of the shares held
by GS Capital Partners V Offshore Fund, L.P. except to
the extent of its pecuniary interest therein, if any. Voting and
dispositive power for the shares held by GS Capital
Partners V Institutional, L.P. is held by its general partner
GS Advisors V., L.L.C., which disclaims beneficial
ownership of the shares held by GS Capital Partners V
Institutional, L.P. except to the extent of its pecuniary
interest therein, if any. Voting and dispositive power for the
shares held by GS Capital Partners V GmbH &
CO. KG is held by its managing limited partner
GS Advisors V., L.L.C., which disclaims beneficial
ownership of the shares held by GS Capital Partners V
GmbH & CO. KG except to the extent of its pecuniary
interest therein, if any. Goldman, Sachs & Co. is a
direct and indirect, wholly owned subsidiary of The Goldman
Sachs Group, Inc. and is an underwriter of this offering.
Goldman, Sachs & Co. is an investment manager of
GSCP V Advisors, L.L.C., GSCP V Offshore Advisors,
L.L.C. and GS Advisors V., L.L.C. The Goldman Sachs
Group, Inc., and certain affiliates, including Goldman,
Sachs & Co. and the Goldman Sachs Funds, may be deemed
to directly or indirectly beneficially own an aggregate of
20,181,661 shares of Series B Preferred Stock which
are owned directly or indirectly by the Goldman Sachs Funds. The
general partner, managing general partner or managing limited
partner of the Goldman Sachs Funds are affiliates of the Goldman
Sachs Group, Inc. and Goldman, Sachs & Co. The Goldman
Sachs Group, Inc., Goldman, Sachs & Co. and the Goldman
Sachs Funds and their general partner, managing general partner
or managing limited partner share voting and investment power
with certain of their respective affiliates. The Goldman Sachs
Group, Inc. and Goldman, Sachs & Co. each disclaim
beneficial ownership of the shares held by the Goldman Sachs
Funds, except to the extent of its pecuniary interest therein,
if any. The address of each of the GS Capital Partners
entities is c/o Goldman, Sachs & Co., One
New York Plaza, 38th Floor, New York, NY 10004, Attn:
Ben Adler.
(2)
The names of the parties who share power to vote and share power
to dispose of the shares held by Oak Investment Partners XII,
Limited Partnership are Fredric W. Harman, Bandel L. Carano, Ann
H. Lamont, and Edward F. Glassmeyer, all of whom are executive
managing members of Oak Associates XII, LLC, the General
Partner of Oak Investment Partners XII, Limited Partnership.
Each such individual disclaims beneficial ownership of the
securities held by such partnership in which such individual
does not have a pecuniary interest. The address of Oak
Investment
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Partners XII, L.P. is 525 University Avenue,
Suite 1300, Palo Alto, CA 94301, Attn: Fredric W. Harman.
(3)
Nathan F. Raciborski is a trustee of, and holds voting and
dispositive power for the shares held by, the Nathan Raciborski
Grantor Retained Annuity Trust Dated October 17, 2006.
(4)
Includes 2,310,207 shares of common stock held by the
Nathan Raciborski Grantor Retained Annuity Trust dated
October 17, 2006, 1,125,000 shares of common stock
held by Nathan Raciborski and 163,053 shares of common
stock held by Cocoon Capital LLC. Nathan F. Raciborski is a
trustee of the Nathan Raciborski Grantor Retained Annuity Trust
dated October 17, 2006 and a member manager of Cocoon
Capital LLC. Mr. Raciborski holds voting and dispositive
power for the shares held by the Nathan Raciborski Grantor
Retained Annuity Trust Dated October 17, 2006 and for
the shares held by Cocoon Capital LLC. Mr. Raciborski
disclaims beneficial ownership of the shares held by Cocoon
Capital LLC, except to the extent of his pecuniary interest
therein.
(5)
Includes 1,384,867 shares of common stock held by Michael
and Lauren Gordon, 50,000 shares of common stock held by
Thunder Road Capital LLC, 75,000 shares of common stock
held by the Buttercup Irrevocable Trust, 75,000 shares of
common stock held by the Dandelion Irrevocable Trust,
75,000 shares of common stock held by the Sunshine
Irrevocable Trust, 75,000 shares of common stock held by
the Tiger Irrevocable Trust and 75,000 shares of common
stock held by the Tigerlily Irrevocable Trust. Michael M. Gordon
is a managing member of Thunder Road Capital LLC and a trustee
of the Buttercup Irrevocable Trust, Dandelion Irrevocable Trust,
Sunshine Irrevocable Trust, Tiger Irrevocable Trust and
Tigerlily Irrevocable Trust. Mr. Gordon holds voting and
dispositive power for the shares held by Thunder Road Capital
LLC, the Buttercup Irrevocable Trust, the Dandelion Irrevocable
Trust, the Sunshine Irrevocable Trust, the Tiger Irrevocable
Trust and the Tigerlily Irrevocable Trust. Mr. Gordon
disclaims beneficial ownership of the shares held by Thunder
Road Capital LLC, except to the extent of his pecuniary interest
therein, and of the shares held by the Buttercup Irrevocable
Trust, the Dandelion Irrevocable Trust, the Sunshine Irrevocable
Trust, the Tiger Irrevocable Trust and the Tigerlily Irrevocable
Trust.
(6)
Includes 2,360,871 shares of common stock held by the
Rinehart Family Trust dated May of 1999. William H. Rinehart is
a trustee of the Rinehart Family Trust dated May of 1999.
Mr. Rinehart holds voting and dispositive power for the
shares held by the Rinehart Family Trust dated May of 1999.
(7)
Includes 10,743 shares issuable upon exercise of options
that are exercisable within 60 days of December 31,
2006.
(8)
Includes 23,450 shares issuable upon exercise of options
that are exercisable within 60 days of December 31,
2006.
(9)
See footnote (1) above. Joseph H. Gleberman is a managing
director of Goldman, Sachs & Co. Mr. Gleberman
holds voting and dispositive power for the shares held by GS
Capital Partners V Fund, L.P., GS Capital Partners V Offshore
Fund, L.P., GS Capital Partners V Institutional, L.P. and GS
Capital Partners V GmbH & Co. KG. Mr. Gleberman
disclaims beneficial ownership of the shares held by GS Capital
Partners V Fund, L.P., GS Capital Partners V Offshore Fund,
L.P., GS Capital Partners V Institutional, L.P. and GS Capital
Partners V GmbH & Co. KG except to the extent of his
pecuniary interest therein.
(10)
See footnote (2) above. Fredric W. Harman has voting and
dispositive power for the shares held by Oak Investment Partners
XII, Limited Partnership. Mr. Harman disclaims beneficial
ownership of the securities held by such partnership in which he
does not have a pecuniary interest.
(11)
Includes 2,000,001 shares of common stock held by the Allan
Kaplan Grantor Retained Annuity Trust Dated
October 17, 2006, 625,000 shares of common stock held
by Allan Kaplan and 163,053 shares of common stock held by
Cocoon Capital LLC. Allan M. Kaplan is a trustee of the Allan
Kaplan Grantor Retained Annuity Trust dated October 17,
2006 and a managing member of Cocoon Capital LLC.
Mr. Kaplan holds voting and dispositive power for the
shares held by the Allan Kaplan Grantor Retained Annuity
Trust dated October 17, 2006 and for the shares held
98
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by Cocoon Capital LLC. Mr. Kaplan disclaims beneficial
ownership of the shares held by Cocoon Capital LLC, except to
the extent of his pecuniary interest therein.
(12)
See footnote (1) above. Peter J. Perrone is a vice
president of Goldman, Sachs & Co. Mr. Perrone does
not hold voting or dispositive power for the shares held by GS
Capital Partners V Fund, L.P., GS Capital Partners V Offshore
Fund, L.P., GS Capital Partners V Institutional, L.P. and GS
Capital Partners V GmbH & Co. KG. Mr. Perrone
disclaims beneficial ownership of the shares held by GS Capital
Partners V Fund, L.P., GS Capital Partners V Offshore Fund,
L.P., GS Capital Partners V Institutional, L.P. and GS Capital
Partners V GmbH & Co. KG except to the extent of his
pecuniary interest therein.
(13)
Includes an aggregate of 34,193 shares issuable upon
exercise of options that are exercisable within 60 days of
December 31, 2006.
99
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restricting dividends on the common stock;
diluting the voting power of the common stock;
impairing the liquidation rights of the common stock; and
delaying or preventing a change in control of our company
without further action by the stockholders.
100
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101
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prior to the date of the transaction, our board of directors
approved either the business combination or the transaction
which resulted in the stockholder becoming an interested
stockholder;
upon completion of the transaction that resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
calculated as provided under Section 203; or
at or subsequent to the date of the transaction, the business
combination is approved by our board of directors and authorized
at an annual or special meeting of stockholders, and not by
written consent, by the affirmative vote of at least two-thirds
of the outstanding voting stock which is not owned by the
interested stockholder.
102
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103
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1% of the number of shares of common stock then outstanding,
which will equal
approximately shares
immediately after this offering; or
the average weekly trading volume of the common stock during the
four calendar weeks preceding the filing of a notice on
Form 144 with respect to such sale.
104
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105
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$
$
$
$
$
$
$
$
106
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107
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108
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109
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110
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F-1
Table of Contents
December 31
$
1,536
$
7,611
4,273
16,626
3,317
157
362
940
3,011
6,906
30,927
11,986
41,784
355
285
173
336
759
$
19,583
$
73,928
$
3,138
$
6,419
362
781
1,000
195
1,950
2,938
289
245
1,799
6,511
8,733
16,894
8,606
20,410
203
5
30
30
188
17,760
37,339
4
3
27
23
14
3,299
41,712
(91
)
(71
)
(113
)
(1,341
)
(5,054
)
1,823
36,589
$
19,583
$
73,928
F-2
Table of Contents
Consolidated Statements of Operations
Years Ended
December 31
(In thousands,
except per share data)
$
11,192
$
21,303
$
64,343
4,834
9,037
25,662
775
2,851
10,316
5,609
11,888
35,978
5,583
9,415
28,365
2,147
4,107
18,274
2,078
3,078
6,841
231
462
3,151
69
100
226
4,525
7,747
28,492
1,058
1,668
(127
)
(189
)
(955
)
(1,782
)
1
208
(48
)
(16
)
175
(236
)
(971
)
(1,399
)
822
697
(1,526
)
306
300
2,187
$
516
$
397
$
(3,713
)
$
317
$
185
$
(3,713
)
$
0.01
$
0.01
$
(0.22
)
$
0.01
$
0.01
$
(0.22
)
23,125
23,158
17,061
25,971
27,375
17,061
F-3
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Accumulated
Additional
Deferred
Other
Series A
Preferred Stock
Series B
Preferred Stock
Common
Stock
Paid-In
Share-Based
Comprehensive
Accumulated
Compensation
2,307,000
$
2
$
23,079,000
$
23
$
2,426
$
(23
)
$
$
(2,254
)
$
174
516
516
2,307,000
2
498
500
46,147
13
13
22
22
7
7
14
4,614,000
4
23,125,147
23
2,966
(16
)
(1,738
)
1,239
397
397
(71
)
(71
)
326
196,491
43
43
87,500
35
35
9
9
77
77
169
(75
)
94
4,614,000
4
23,409,138
23
3,299
(91
)
(71
)
(1,341
)
1,823
(3,713
)
(3,713
)
(42
)
(42
)
(3,755
)
(91
)
91
26,579,970
27
126,289
126,316
(1,233,800
)
(1
)
1,233,800
1
3,493,549
4
1,028
1,032
2,160,629
2
(2
)
3,907,588
4
1,050
1,054
1,230,000
1
(1
)
1,735
1,735
254
254
496
496
1,627
1,627
729
729
(20,879,910
)
(21
)
(102,100
)
(102,121
)
7,399
7,399
3,380,200
$
3
26,579,970
$
27
14,554,794
$
14
$
41,712
$
$
(113
)
$
(5,054
)
$
36,589
F-4
Table of Contents
Years Ended
December 31
(In
thousands)
$
516
$
397
$
(3,713
)
844
2,951
10,542
14
94
9,134
250
(125
)
(538
)
312
293
1,162
22
6
97
(2
)
(175
)
(1,189
)
(3,677
)
(13,515
)
(201
)
(707
)
(2,071
)
(3,317
)
(132
)
(153
)
(423
)
625
2,064
3,725
359
3
419
187
1,301
4,966
30
1,605
2,477
6,293
(2,620
)
(10,852
)
(40,609
)
123
(2,497
)
(10,852
)
(40,609
)
32,873
8,769
32,873
(31,319
)
(642
)
(19,682
)
1,000
(1,000
)
(261
)
(34
)
(242
)
659
(475
)
(464
)
(195
)
729
9
1,627
13
78
2,086
500
126,316
(102,121
)
1,331
9,375
40,391
439
1,000
6,075
97
536
1,536
$
536
$
1,536
$
7,611
$
118
$
634
$
1,143
$
67
$
$
4,805
F-5
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1.
Organization and
Basis of Presentation
2.
Summary of
Significant Accounting Policies and Use of Estimates
F-6
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F-7
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Additions
Deductions
Balance at
Charged to
Charged
Write-Offs,
Beginning
Costs and
Against
Net of
Balance at
$
18
$
229
$
83
$
69
$
261
261
135
158
226
328
328
618
544
286
1,204
3 years
3 years
3-5 years
3-7 years
F-8
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F-9
Table of Contents
Years Ended
December 31
(In thousands,
except per share data)
$
516
$
397
$
(3,713
)
199
212
$
317
$
185
$
(3,713
)
23,125
23,158
17,314
(253
)
23,125
23,158
17,061
791
894
2,055
3,323
25,971
27,375
17,061
$
0.01
$
0.01
$
(0.22
)
$
0.01
$
0.01
$
(0.22
)
(In
thousands)
2,326
15
F-10
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F-11
Table of Contents
3.
Prepaid Expenses
and Other Current Assets
(In thousands)
$
230
$
1,087
392
974
318
950
$
940
$
3,011
F-12
Table of Contents
4.
Property and
Equipment
(In
thousands)
$
15,444
$
54,530
426
951
72
136
173
526
27
106
16,142
56,249
(4,156
)
(14,465
)
$
11,986
$
41,784
5.
Other Current
Liabilities
(In
thousands)
$
759
$
3,549
379
675
386
610
275
1,677
$
1,799
$
6,511
6.
Notes Payable
and Credit Facilities
(In
thousands)
$
6,027
$
23,818
4,600
10,627
23,818
(1,950
)
(2,938
)
(71
)
(470
)
$
8,606
$
20,410
$
2,938
5,293
5,293
5,293
5,001
$
23,818
F-13
Table of Contents
F-14
Table of Contents
7.
Warrants
2,559
$0.08 - $0.22
582
$0.21 - $0.90
3,141
$0.08 - $0.90
1,072
$0.40
(88
)
$0.40
4,125
$0.08 - $0.90
297
$0.40
(3,908
)
$0.08 - $0.90
(449
)
$0.08
65
$0.22
F-15
Table of Contents
8.
Stockholders
Equity
F-16
Table of Contents
F-17
Table of Contents
2006
In July a controlling interest is sold to an investor group led
by Goldman, Sachs & Co. through the issuance of shares of
Series B Preferred Stock, at a price of $4.89 per
share, for total aggregate consideration of $130 million.
As part of the transaction, the Company repurchased
20,880,000 shares of common stock for an aggregate net
consideration of $102.1 million.
2006
In the fourth quarter the Company appoints both a Chief
Executive Officer and a Chief Financial Officer with past public
company roles in a similar capacity.
2006
Revenue growth exceeds 200%, to $64.3 million compared to
revenue in 2005 of $21.3 million.
F-18
Table of Contents
Weighted
Average
Number
Exercise
(In
thousands)
2,026
$
0.21
177
0.32
2,203
0.22
2,435
0.40
(196
)
0.22
(315
)
0.38
4,127
0.31
5,385
3.29
(5,654
)
0.34
(91
)
0.65
3,767
$
4.47
Options
Outstanding
Options
Exercisable
Weighted
Average
Weighted
Weighted
Remaining
Average
Number of
Average
Contractual
Exercise
Shares
Exercise
Number
Live
(Years)
Price
Exercisable
Price
(In
thousands)
(In
thousands)
229
6.24
$
0.21
211
$
0.21
2,168
8.99
0.40
1,908
0.40
300
9.76
1.27
1.27
570
9.92
9.95
9.95
500
9.92
19.80
19.80
3,767
2,119
Year Ended
December 31,
84.47
%
6.08
4.58
%
$
0.00
F-19
Table of Contents
9.
Related Party
Transactions
F-20
Table of Contents
10.
Leases and
Commitments
(In
thousands)
$
524
485
344
314
68
$
1,735
Amount
(In
thousands)
$
12,849
5,345
1,483
183
153
F-21
Table of Contents
(In
thousands)
$
272
5
277
(27
)
250
(245
)
$
5
11.
Concentrations
F-22
Table of Contents
12.
Income
Taxes
(In
thousands)
$
822
$
541
$
(2,184
)
156
658
$
822
$
697
$
(1,526
)
(In
thousands)
$
$
321
$
2,375
56
58
156
46
194
56
425
2,725
267
(112
)
(464
)
(17
)
(13
)
(74
)
250
(125
)
(538
)
$
306
$
300
$
2,187
(In
thousands)
$
287
$
244
$
(534
)
2,619
27
30
53
44
100
(6
)
(8
)
(18
)
(45
)
$
306
$
300
$
2,187
F-23
Table of Contents
(In
thousands)
$
95
$
280
68
45
53
47
75
29
33
82
272
535
(303
)
(303
)
$
(31
)
$
535
(In
thousands)
$
157
$
362
173
(188
)
$
(31
)
$
535
13.
Advertising and
Marketing
14.
401(k)
Plan
F-24
Table of Contents
15.
Segment
Reporting
(In
thousands)
$
11,192
$
20,303
$
59,252
1,000
5,091
$
11,192
$
21,303
$
64,343
$
10,343
$
39,198
1,643
2,586
$
11,986
$
41,784
16.
Subsequent
Events
F-25
Table of Contents
LIMELIGHT NEWTWORKS TM Customer Benefits: High-Quality User Experience Scalable Rich Media Delivery Reliable Network Architecture Comprehensive Solution Low Content Delivery Costs
1
8
25
26
26
27
29
31
33
57
70
91
96
100
104
106
110
110
110
F-1
EX-10.3
EX-10.4
EX-10.5
EX-10.10
EX-10.11
EX-10.12
EX-10.13
EX-23.1
Table of Contents
Item 13.
Other Expenses
of Issuance and Distribution.
$
6,179
*
*
*
*
*
*
*
*
$
2,400,000
Item 14.
Indemnification
of Officers and Directors.
II-1
Table of Contents
Item 15.
Recent Sales
of Unregistered Securities.
II-2
Table of Contents
II-3
Table of Contents
Item 16.
Exhibits and
Financial Statement Schedules
Exhibit
1
.1**
Form of Underwriting Agreement
3
.1*
Amended and Restated Certificate
of Incorporation of the Registrant, as currently in effect
3
.2*
Form of Amended and Restated
Certificate of Incorporation of the Registrant, to be effective
upon closing of the offering
3
.3*
Bylaws of the Registrant, as
currently in effect
3
.4*
Form of Amended and Restated
Bylaws of the Registrant, to be effective upon closing of the
offering
4
.1**
Specimen Common Stock Certificate
of the Registrant
4
.2*
Amended and Restated
Investors Rights Agreement dated July 12, 2006
5
.1**
Opinion of Wilson Sonsini
Goodrich & Rosati, Professional Corporation
10
.1*
Form of Indemnification Agreement
for directors and officers
10
.2*
Amended and Restated 2003
Incentive Compensation Plan and form of agreement thereunder
10
.3
2007 Equity Incentive Plan and
form of agreement thereunder
10
.4
Employment Agreement between the
Registrant and Jeffrey W. Lunsford dated October 20, 2006
10
.5
Employment Agreement between the
Registrant and Matthew Hale dated November 22, 2006
10
.6*
Lease between the Registrant and
Bel de Mar, LLC dated November 18, 2002
10
.7*
Lease between the Registrant and
Bel de Mar, LLC dated December 1, 2004
10
.8*
Lease between the Registrant and
Calwest Industrial Properties, LLC dated September 7, 2005
10
.9*
Loan and Security Agreement dated
April 15, 2005 between the Registrant and Silicon Valley
Bank, and amendments thereto
10
.10
Bandwidth/Capacity Agreement
between Registrant and Global Crossing Bandwidth, Inc., dated
August 29, 2001, and amendments thereto
10
.11
Series B Convertible
Preferred Stock Purchase Agreement dated May 18, 2006
10
.12
Form of
At-Will
Employment, Confidential Information, Invention Assignment, and
Arbitration Agreement for officers and employees
10
.13
Employment Agreement between the
Registrant and David M. Hatfield dated March 27,
2007
21
.1*
List of subsidiaries of the
Registrant
23
.1
Consent of Ernst & Young
LLP, Independent Registered Public Accounting Firm
23
.2**
Consent of Wilson Sonsini
Goodrich & Rosati, Professional Corporation (included
in Exhibit 5.1)
24
.1*
Power of Attorney
II-4
Table of Contents
*
Previously filed.
**
To be filed by amendment.
Confidential treatment has been requested for portions of this
exhibit. These portions have been omitted from this Registration
Statement and have been filed separately with the Securities and
Exchange Commission.
Item 17.
Undertakings.
II-5
Table of Contents
By:
President, Chief Executive Officer
and Chairman (principal executive officer)
April 27, 2007
Chief Financial Officer (principal
financial officer and principal
accounting officer)
April 27, 2007
Director
April 27, 2007
Director
April 27, 2007
Director
April 27, 2007
Co-Founder and Director
April 27, 2007
Director
April 27, 2007
Director
April 27, 2007
Co-Founder, Chief Technical
Officer and Director
April 27, 2007
Director
April 27, 2007
*By:
Attorney-in-fact
II-6
Table of Contents
Exhibit
1
.1**
Form of Underwriting Agreement
3
.1*
Amended and Restated Certificate
of Incorporation of the Registrant, as currently in effect
3
.2*
Form of Amended and Restated
Certificate of Incorporation of the Registrant, to be effective
upon closing of the offering
3
.3*
Bylaws of the Registrant, as
currently in effect
3
.4*
Form of Amended and Restated
Bylaws of the Registrant, to be effective upon closing of the
offering
4
.1**
Specimen Common Stock Certificate
of the Registrant
4
.2*
Amended and Restated
Investors Rights Agreement dated July 12, 2006
5
.1**
Opinion of Wilson Sonsini
Goodrich & Rosati, Professional Corporation
10
.1*
Form of Indemnification Agreement
for directors and officers
10
.2*
Amended and Restated 2003
Incentive Compensation Plan and form of agreement thereunder
10
.3
2007 Equity Incentive Plan and
form of agreement thereunder
10
.4
Employment Agreement between the
Registrant and Jeffrey W. Lunsford dated October 20, 2006
10
.5
Employment Agreement between the
Registrant and Matthew Hale dated November 22, 2006
10
.6*
Lease between the Registrant and
Bel de Mar, LLC dated November 18, 2002
10
.7*
Lease between the Registrant and
Bel de Mar, LLC dated December 1, 2004
10
.8*
Lease between the Registrant and
Calwest Industrial Properties, LLC dated September 7, 2005
10
.9*
Loan and Security Agreement dated
April 15, 2005 between the Registrant and Silicon Valley
Bank, and amendments thereto
10
.10
Bandwidth/Capacity Agreement
between Registrant and Global Crossing Bandwidth, Inc., dated
August 29, 2001, and amendments thereto
10
.11
Series B Convertible
Preferred Stock Purchase Agreement dated May 18, 2006
10
.12
Form of
At-Will
Employment, Confidential Information, Invention Assignment, and
Arbitration Agreement for officers and employees
10
.13
Employment Agreement between the
Registrant and David M. Hatfield dated March 27,
2007
21
.1*
List of subsidiaries of the
Registrant
23
.1
Consent of Ernst & Young
LLP, Independent Registered Public Accounting Firm
23
.2**
Consent of Wilson Sonsini
Goodrich & Rosati, Professional Corporation (included
in Exhibit 5.1)
24
.1*
Power of Attorney
*
Previously filed.
**
To be filed by amendment.
Confidential treatment has been requested for portions of this
exhibit. These portions have been omitted from this Registration
Statement and have been filed separately with the Securities and
Exchange Commission.
Exhibit 10.3
LIMELIGHT NETWORKS, INC.
2007 EQUITY INCENTIVE PLAN
1. Purposes of the Plan. The purposes of this Plan are:
- to attract and retain the best available personnel for positions of substantial responsibility,
- to provide additional incentive to Employees, Directors and Consultants, and
- to promote the success of the Company's business.
The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights, Performance Units and Performance Shares.
2. Definitions. As used herein, the following definitions will apply:
(a) "Administrator" means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4 of the Plan.
(b) "Applicable Laws" means the requirements relating to the administration of equity-based awards under U.S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Awards are, or will be, granted under the Plan.
(c) "Award" means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Units or Performance Shares.
(d) "Award Agreement" means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.
(e) "Board" means the Board of Directors of the Company.
(f) "Change in Control" means the occurrence of any of the following events:
(i) Any "person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing fifty percent (50%) or more of the total voting power represented by the Company's then outstanding voting securities;
(ii) The consummation of the sale or disposition by the Company of all or substantially all of the Company's assets;
(iii) A change in the composition of the Board occurring within a two (2)-year period, as a result of which fewer than a majority of the directors are Incumbent Directors. "Incumbent Directors" means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Incumbent Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company); or
(iv) The consummation 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 or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation.
(g) "Code" means the Internal Revenue Code of 1986, as amended. Any reference to a section of the Code herein will be a reference to any successor or amended section of the Code.
(h) "Committee" means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4 hereof.
(i) "Common Stock" means the common stock of the Company.
(j) "Company" means Limelight Networks, Inc., a Delaware corporation, or any successor thereto.
(k) "Consultant" means any person, including an advisor, engaged by the Company or a Parent or Subsidiary to render services to such entity.
(l) "Director" means a member of the Board.
(m) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code, provided that in the case of Awards other than
Incentive Stock Options, the Administrator in its discretion may determine
whether a permanent and total disability exists in accordance with uniform and
non-discriminatory standards adopted by the Administrator from time to time.
(n) "Employee" means any person, including Officers and Directors, employed by the Company or any Parent or Subsidiary of the Company. Neither service as a Director nor payment of a director's fee by the Company will be sufficient to constitute "employment" by the Company.
(o) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(p) "Exchange Program" means a program under which (i) outstanding Awards are surrendered or cancelled in exchange for Awards of the same type (which may have lower exercise prices and different terms), Awards of a different type, and/or cash, (ii) Participants would have the opportunity to transfer any outstanding Awards to a financial institution or other person or entity selected by the Administrator, and/or (iii) the exercise price of an outstanding Award is reduced. The Administrator will determine the terms and conditions of any Exchange Program in its sole discretion.
(q) "Fair Market Value" means, as of any date, the value of Common Stock determined as follows:
(i) If the Common Stock is listed on any established stock exchange or a national market system, including without limitation the Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in The Wall Street Journal or such other source as the Administrator deems reliable;
(iii) For purposes of any Awards granted on the Registration Date, the Fair Market Value will be the initial price to the public as set forth in the final prospectus included within the registration statement in Form S-1 filed with the Securities and Exchange Commission for the initial public offering of the Company's Common Stock; or
(iv) In the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Administrator.
(r) "Fiscal Year" means the fiscal year of the Company.
(s) "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.
(t) "Inside Director" means a Director who is an Employee.
(u) "Nonstatutory Stock Option" means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.
(v) "Officer" means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
(w) "Option" means a stock option granted pursuant to the Plan.
(x) "Outside Director" means a Director who is not an Employee.
(y) "Parent" means a "parent corporation," whether now or hereafter existing, as defined in Section 424(e) of the Code.
(z) "Participant" means the holder of an outstanding Award.
(aa) "Performance Share" means an Award denominated in Shares which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine pursuant to Section 10.
(bb) "Performance Unit" means an Award which may be earned in whole or in part upon attainment of performance goals or other vesting criteria as the Administrator may determine and which may be settled for cash, Shares or other securities or a combination of the foregoing pursuant to Section 10.
(cc) "Period of Restriction" means the period during which the transfer of Shares of Restricted Stock are subject to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.
(dd) "Plan" means this 2007 Equity Incentive Plan.
(ee) "Registration Date" means the effective date of the first registration statement that is filed by the Company and declared effective pursuant to Section 12(g) of the Exchange Act, with respect to any class of the Company's securities.
(ff) "Restricted Stock" means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan, or issued pursuant to the early exercise of an Option.
(gg) "Restricted Stock Unit" means a bookkeeping entry representing an
amount equal to the Fair Market Value of one Share, granted pursuant to Section
8. Each Restricted Stock Unit represents an unfunded and unsecured obligation of
the Company.
(hh) "Rule 16b-3" means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.
(ii) "Section 16(b)" means Section 16(b) of the Exchange Act.
(jj) "Service Provider" means an Employee, Director or Consultant.
(kk) "Share" means a share of the Common Stock, as adjusted in accordance with Section 14 of the Plan.
(ll) "Stock Appreciation Right" means an Award, granted alone or in connection with an Option, that pursuant to Section 9 is designated as a Stock Appreciation Right.
(mm) "Subsidiary" means a "subsidiary corporation", whether now or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan.
(a) Stock Subject to the Plan. Subject to the provisions of Section 14
of the Plan, the maximum aggregate number of Shares that may be issued under the
Plan is 5,000,000 Shares, plus (i) any Shares that, as of the Registration Date,
have been reserved but not issued pursuant to any awards granted under the
Limelight Networks, Inc. Amended and Restated 2003 Incentive Compensation Plan
(the "Old Plan") and are not subject to any awards granted thereunder, and (ii)
any Shares subject to stock options or similar awards granted under the Old Plan
that expire or otherwise terminate without having been exercised in full and
Shares issued pursuant to awards granted under the Old Plan that are forfeited
to or repurchased by the Company. The Shares may be authorized, but unissued, or
reacquired Common Stock.
(b) Automatic Share Reserve Increase. The number of Shares available for issuance under the Plan shall be increased on the first day of each Fiscal Year beginning with the 2008 Fiscal Year, in an amount equal to the least of (A) 3,000,000 Shares, (B) 4% of the outstanding Shares on the last day of the immediately preceding Fiscal Year or (C) such number of Shares determined by the Board.
(c) Lapsed Awards. If an Award expires or becomes unexercisable
without having been exercised in full, is surrendered pursuant to an Exchange
Program, or, with respect to Restricted Stock, Restricted Stock Units,
Performance Units or Performance Shares, is forfeited to or repurchased by the
Company due to failure to vest, the unpurchased Shares (or for Awards other than
Options or Stock Appreciation Rights the forfeited or repurchased Shares) which
were subject thereto will become available for future grant or sale under the
Plan (unless the Plan has terminated). With respect to Stock Appreciation
Rights, only Shares actually issued pursuant to a Stock Appreciation Right will
cease to be available under the Plan; all remaining Shares under Stock
Appreciation Rights will remain available for future grant or sale under the
Plan (unless the Plan has terminated). Shares that have actually been issued
under the Plan under any Award will not be returned to the Plan and will not
become available for future distribution under the Plan; provided, however, that
if Shares issued pursuant to Awards of Restricted Stock, Restricted Stock Units,
Performance Shares or Performance Units are repurchased by the Company or are
forfeited to the Company, such Shares will become available for future grant
under the Plan. Shares used to pay the exercise price of an Award or to satisfy
the tax withholding obligations related to an Award will become available for
future grant or sale under the Plan. To the extent an Award under the Plan is
paid out in cash rather than Shares, such cash payment will not result in
reducing the number of Shares available for issuance under the Plan.
Notwithstanding the foregoing and, subject to adjustment as provided in Section
14, the maximum number of Shares that may be issued upon the exercise of
Incentive Stock Options shall equal the aggregate Share number stated in Section
3(a), plus, to the extent allowable under Section 422 of the Code and the
Treasury Regulations promulgated thereunder, any Shares that become available
for issuance under the Plan pursuant to Section 3(c).
(d) Share Reserve. The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as will be sufficient to satisfy the requirements of the Plan.
4. Administration of the Plan.
(a) Procedure.
(i) Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan.
(ii) Section 162(m). To the extent that the Administrator determines it to be desirable to qualify Options granted hereunder as "performance-based compensation" within the meaning of Section 162(m) of the Code, the Plan will be administered by a Committee of two (2) or more "outside directors" within the meaning of Section 162(m) of the Code.
(iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3.
(iv) Other Administration. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee will be constituted to satisfy Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan, and in the case of a Committee, subject to the specific duties delegated by the Board to such Committee, the Administrator will have the authority, in its discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Awards may be granted hereunder;
(iii) to determine the number of Shares to be covered by each Award granted hereunder;
(iv) to approve forms of Award Agreements for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine;
(vi) to determine the terms and conditions of any, and to institute any Exchange Program;
(vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;
(viii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations relating to sub-plans established for the purpose of satisfying applicable foreign laws;
(ix) to modify or amend each Award (subject to Section 19(c) of the Plan), including the discretionary authority to extend the post-termination exercisability period of Awards;
(x) to allow Participants to satisfy withholding tax obligations in such manner as prescribed in Section 15;
(xi) to authorize any person to execute on behalf of the Company any instrument required to effect the grant of an Award previously granted by the Administrator;
(xii) to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant under an Award
(xiii) to make all other determinations deemed necessary or advisable for administering the Plan.
(c) Effect of Administrator's Decision. The Administrator's decisions, determinations and interpretations will be final and binding on all Participants and any other holders of Awards.
5. Eligibility. Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Performance Shares and Performance Units may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.
6. Stock Options.
(a) Limitations. Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as of the time the Option with respect to such Shares is granted.
(b) Term of Option. The term of each Option will be stated in the
Award Agreement. In the case of an Incentive Stock Option, the term will be ten
(10) years from the date of grant or such shorter term as may be provided in the
Award Agreement. Moreover, in the case of an Incentive Stock Option granted to a
Participant who, at the time the Incentive Stock Option is granted, owns stock
representing more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or any Parent or Subsidiary, the term of the
Incentive Stock Option will be five (5) years from the date of grant or such
shorter term as may be provided in the Award Agreement.
(c) Option Exercise Price and Consideration.
(i) Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined by the Administrator, subject to the following:
(1) In the case of an Incentive Stock Option
a) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant.
b) granted to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.
(2) In the case of a Nonstatutory Stock Option, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.
(3) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code.
(ii) Waiting Period and Exercise Dates. At the time an Option is granted, the Administrator will fix the period within which the Option may be exercised and will determine any conditions that must be satisfied before the Option may be exercised.
(iii) Form of Consideration. The Administrator will determine the
acceptable form of consideration for exercising an Option, including the method
of payment. In the case of an Incentive Stock Option, the Administrator will
determine the acceptable form of consideration at the time of grant. Such
consideration may consist entirely of: (1) cash; (2) check; (3) promissory note,
(4) other Shares, provided Shares acquired directly or indirectly from the
Company, (A) have been owned by the Participant and not subject to substantial
risk of forfeiture for more than six months on the date of surrender, and (B)
have a Fair Market Value on the date of surrender equal to the aggregate
exercise price of the Shares as to which said Option will be exercised; (5)
consideration received by the Company under a broker-assisted (or other)
cashless exercise program implemented by the Company in connection with the
Plan; (6) any combination of the foregoing methods of payment; or (7) such other
consideration and method of payment for the issuance of Shares to the extent
permitted by Applicable Laws.
(d) Exercise of Option.
(i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder will be exercisable according to the terms of the Plan and at such times and under such
conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share.
An Option will be deemed exercised when the Company receives: (i) notice of exercise (in such form as the Administrator specify from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised (together with applicable withholding taxes). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares subject to an Option, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 14 of the Plan.
Exercising an Option in any manner will decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
(ii) Termination of Relationship as a Service Provider. If a Participant ceases to be a Service Provider, other than upon the Participant's death or Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent that the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for three (3) months following the Participant's termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified by the Administrator, the Option will terminate, and the Shares covered by such Option will revert to the Plan.
(iii) Disability of Participant. If a Participant ceases to be a Service Provider as a result of the Participant's Disability, the Participant may exercise his or her Option within such period of time as is specified in the Award Agreement to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Award Agreement). In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following the Participant's termination. Unless otherwise provided by the Administrator, if on the date of termination the Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will revert to the Plan. If after termination the Participant does not exercise his or her Option within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.
(iv) Death of Participant. If a Participant dies while a Service Provider, the Option may be exercised following the Participant's death within such period of time as is specified
in the Award Agreement to the extent that the Option is vested on the date of death (but in no event may the option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement), by the Participant's designated beneficiary, provided such beneficiary has been designated prior to Participant's death in a form acceptable to the Administrator. If no such beneficiary has been designated by the Participant, then such Option may be exercised by the personal representative of the Participant's estate or by the person(s) to whom the Option is transferred pursuant to the Participant's will or in accordance with the laws of descent and distribution. In the absence of a specified time in the Award Agreement, the Option will remain exercisable for twelve (12) months following Participant's death. Unless otherwise provided by the Administrator, if at the time of death Participant is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will immediately revert to the Plan. If the Option is not so exercised within the time specified herein, the Option will terminate, and the Shares covered by such Option will revert to the Plan.
7. Restricted Stock.
(a) Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion, will determine.
(b) Restricted Stock Agreement. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares of Restricted Stock until the restrictions on such Shares have lapsed.
(c) Transferability. Except as provided in this Section 7, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction.
(d) Other Restrictions. The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.
(e) Removal of Restrictions. Except as otherwise provided in this
Section 7, Shares of Restricted Stock covered by each Restricted Stock grant
made under the Plan will be released from escrow as soon as practicable after
the last day of the Period of Restriction or at such other time as the
Administrator may determine. The Administrator, in its discretion, may
accelerate the time at which any restrictions will lapse or be removed.
(f) Voting Rights. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.
(g) Dividends and Other Distributions. During the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other distributions paid with respect to such Shares, unless the Administrator provides otherwise. If any such dividends or distributions are paid in Shares, the Shares will be subject to the same restrictions
on transferability and forfeitability as the Shares of Restricted Stock with respect to which they were paid.
(h) Return of Restricted Stock to Company. On the date set forth in the Award Agreement, the Restricted Stock for which restrictions have not lapsed will revert to the Company and again will become available for grant under the Plan.
8. Restricted Stock Units.
(a) Grant. Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator. After the Administrator determines that it will grant Restricted Stock Units under the Plan, it shall advise the Participant in an Award Agreement of the terms, conditions, and restrictions related to the grant, including the number of Restricted Stock Units.
(b) Vesting Criteria and Other Terms. The Administrator shall set vesting criteria in its discretion, which, depending on the extent to which the criteria are met, will determine the number of Restricted Stock Units that will be paid out to the Participant. The Administrator may set vesting criteria based upon the achievement of Company-wide, business unit, or individual goals (including, but not limited to, continued employment), or any other basis determined by the Administrator in its discretion.
(c) Earning Restricted Stock Units. Upon meeting the applicable vesting criteria, the Participant shall be entitled to receive a payout as determined by the Administrator. Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any vesting criteria that must be met to receive a payout.
(d) Form and Timing of Payment. Payment of earned Restricted Stock Units shall be made as soon as practicable after the date(s) determined by the Administrator and set forth in the Award Agreement. The Administrator, in its sole discretion, may only settle earned Restricted Stock Units in cash, Shares, or a combination of both.
(e) Cancellation. On the date set forth in the Award Agreement, all unearned Restricted Stock Units shall be forfeited to the Company.
9. Stock Appreciation Rights.
(a) Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, a Stock Appreciation Right may be granted to Service Providers at any time and from time to time as will be determined by the Administrator, in its sole discretion.
(b) Number of Shares. The Administrator will have complete discretion to determine the number of Stock Appreciation Rights granted to any Service Provider.
(c) Exercise Price and Other Terms. The per share exercise price for the Shares to be issued pursuant to exercise of an Stock Appreciation Right shall be determined by the Administrator and shall be no less than one hundred percent (100%) of the Fair Market Value per
share on the date of grant. Otherwise, subject to Section 6(a) of the Plan, the Administrator, subject to the provisions of the Plan, shall have complete discretion to determine the terms and conditions of Stock Appreciation Rights granted under the Plan.
(d) Stock Appreciation Right Agreement. Each Stock Appreciation Right grant will be evidenced by an Award Agreement that will specify the exercise price, the term of the Stock Appreciation Right, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion, will determine.
(e) Expiration of Stock Appreciation Rights. An Stock Appreciation Right granted under the Plan will expire upon the date determined by the Administrator, in its sole discretion, and set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(d) also will apply to Stock Appreciation Rights.
(f) Payment of Stock Appreciation Right Amount. Upon exercise of an Stock Appreciation Right, a Participant will be entitled to receive payment from the Company in an amount determined by multiplying:
(i) The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times
(ii) The number of Shares with respect to which the Stock Appreciation Right is exercised.
At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares of equivalent value, or in some combination thereof.
10. Performance Units and Performance Shares.
(a) Grant of Performance Units/Shares. Performance Units and Performance Shares may be granted to Service Providers at any time and from time to time, as will be determined by the Administrator, in its sole discretion. The Administrator will have complete discretion in determining the number of Performance Units and Performance Shares granted to each Participant.
(b) Value of Performance Units/Shares. Each Performance Unit will have an initial value that is established by the Administrator on or before the date of grant. Each Performance Share will have an initial value equal to the Fair Market Value of a Share on the date of grant.
(c) Performance Objectives and Other Terms. The Administrator will set performance objectives or other vesting provisions (including, without limitation, continued status as a Service Provider) in its discretion which, depending on the extent to which they are met, will determine the number or value of Performance Units/Shares that will be paid out to the Service Providers. The time period during which the performance objectives or other vesting provisions must be met will be called the "Performance Period." Each Award of Performance Units/Shares will be evidenced by an Award Agreement that will specify the Performance Period, and such other terms and conditions as the Administrator, in its sole discretion, will determine. The Administrator may set performance objectives based upon the achievement of Company-wide, divisional, or
individual goals, applicable federal or state securities laws, or any other basis determined by the Administrator in its discretion.
(d) Earning of Performance Units/Shares. After the applicable Performance Period has ended, the holder of Performance Units/Shares will be entitled to receive a payout of the number of Performance Units/Shares earned by the Participant over the Performance Period, to be determined as a function of the extent to which the corresponding performance objectives or other vesting provisions have been achieved. After the grant of a Performance Unit/Share, the Administrator, in its sole discretion, may reduce or waive any performance objectives or other vesting provisions for such Performance Unit/Share.
(e) Form and Timing of Payment of Performance Units/Shares. Payment of earned Performance Units/Shares will be made as soon as practicable after the expiration of the applicable Performance Period. The Administrator, in its sole discretion, may pay earned Performance Units/Shares in the form of cash, in Shares (which have an aggregate Fair Market Value equal to the value of the earned Performance Units/Shares at the close of the applicable Performance Period) or in a combination thereof.
(f) Cancellation of Performance Units/Shares. On the date set forth in the Award Agreement, all unearned or unvested Performance Units/Shares will be forfeited to the Company, and again will be available for grant under the Plan.
11. Formula Awards to Outside Directors.
(a) General. Outside Directors will be entitled to receive all types of Awards (except Incentive Stock Options) under this Plan, including discretionary Awards not covered under this Section 11. All grants of Awards to Outside Directors pursuant to this Section will be automatic and nondiscretionary, except as otherwise provided herein, and will be made in accordance with the following provisions: (b) Type of Option. If Options are granted pursuant to this Section they will be Nonstatutory Stock Options and, except as otherwise provided herein, will be subject to the other terms and conditions of the Plan.
(c) No Discretion. No person will have any discretion to select which Outside Directors will be granted Awards under this Section or to determine the number of Shares to be covered by such Awards (except as provided in Sections 11(g) and 14).
(d) Initial Award. Each person who first becomes an Outside Director following the Registration Date will be automatically granted an Option to purchase such number of Shares as is determined from time to time by resolution of the Administrator (the "Initial Award") on or about the date on which such person first becomes an Outside Director, whether through election by the stockholders of the Company or appointment by the Board to fill a vacancy; provided, however, that an Inside Director who ceases to be an Inside Director, but who remains a Director, will not receive an Initial Award.
(e) Annual Award. Each Outside Director will be automatically granted an Option to purchase such number of Shares as is determined from time to time by resolution of the
Administrator (an "Annual Award") on each date of the annual meeting of the stockholders of the Company beginning in 2008, if as of such date, he or she will have served on the Board for at least the preceding six (6) months.
(f) Terms. The terms of each Award granted pursuant to this Section will be as follows:
(i) The term of the Award will be ten (10) years.
(ii) The exercise price for Shares subject to Awards will be 100% of the Fair Market Value on the grant date.
(iii) Subject to Sections 11(g) and 14, the Initial Award will vest and become exercisable as to one thirty-sixth (1/36th) of the Shares subject to the Initial Award on the date one month following the vesting commencement date of such Initial Award, and an additional one thirty-sixth (1/36th) of the total shares subject to the Initial Award shall vest and become exercisable on the same day as the vesting commencement date of each calendar month thereafter, provided that the Participant continues to serve as a Director through each such date.
(iv) Subject to Sections 11(g) and 14, the Annual Award will vest and become exercisable as to one hundred percent (100%) of the Shares subject to such Award on the day prior to the next year's annual shareholder meeting (but in no event later than December 31 of the calendar year following the calendar year during which the Annual Award is granted), provided that the Participant continues to serve as a Director through such date.
(g) Adjustments. The Administrator in its discretion may change and otherwise revise the terms of Awards granted under this Section 11, including, without limitation, the number of Shares and exercise prices thereof, for Awards granted on or after the date the Administrator determines to make any such change or revision.
12. Leaves of Absence/Transfer Between Locations. Unless the Administrator provides otherwise, vesting of Awards granted hereunder will be suspended during any unpaid leave of absence. A Service Provider will not cease to be an Employee in the case of (i) any leave of absence approved by the Company or (ii) transfers between locations of the Company or between the Company, its Parent, or any Subsidiary. For purposes of Incentive Stock Options, no such leave may exceed ninety (90) days, unless reemployment upon expiration of such leave is guaranteed by statute or contract. If reemployment upon expiration of a leave of absence approved by the Company is not so guaranteed, then three (3) months following the ninety-first (91st) day of such leave any Incentive Stock Option held by the Participant will cease to be treated as an Incentive Stock Option and will be treated for tax purposes as a Nonstatutory Stock Option.
13. Transferability of Awards. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate.
14. Adjustments; Dissolution or Liquidation; Merger or Change in Control.
(a) Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, shall adjust the number and class of Shares that may be delivered under the Plan and/or the number, class, and price of Shares covered by each outstanding Award, and the numerical Share limits in Sections 3 and 11 of the Plan.
(b) Dissolution or Liquidation. In the event of the proposed dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised, an Award will terminate immediately prior to the consummation of such proposed action.
(c) Change in Control. In the event of a merger or Change in Control, each outstanding Award will be treated as the Administrator determines, including, without limitation, that each Award be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation. The Administrator shall not be required to treat all Awards similarly in the transaction.
In the event that the successor corporation does not assume or substitute for the Award, the Participant will fully vest in and have the right to exercise all of his or her outstanding Options and Stock Appreciation Rights, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Awards with performance-based vesting, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met. In addition, if an Option or Stock Appreciation Right is not assumed or substituted in the event of a Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right will terminate upon the expiration of such period.
For the purposes of this subsection (c), an Award will be considered assumed if, following the Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Unit, Performance Unit or Performance Share, for each Share subject to such Award, to be solely common stock of the
successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control.
Notwithstanding anything in this Section 14(c) to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant's consent; provided, however, a modification to such performance goals only to reflect the successor corporation's post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption.
(d) Outside Director Awards. With respect to Awards granted to an Outside Director that are assumed or substituted for, if on the date of or following such assumption or substitution the Participant's status as a Director or a director of the successor corporation, as applicable, is terminated other than upon a voluntary resignation by the Participant (unless such resignation is at the request of the acquirer), then the Participant will fully vest in and have the right to exercise Options and/or Stock Appreciation Rights as to all of the Shares underlying such Award, including those Shares which would not otherwise be vested or exercisable, all restrictions on Restricted Stock and Restricted Stock Units will lapse, and, with respect to Performance Units and Performance Shares, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met.
15. Tax Withholding.
(a) Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise thereof), the Company will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Participant's FICA obligation) required to be withheld with respect to such Award (or exercise thereof).
(b) Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit a Participant to satisfy such tax withholding obligation, in whole or in part by (without limitation) (a) paying cash, (b) electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld, or (c) delivering to the Company already-owned Shares having a Fair Market Value equal to the minimum statutory amount required to be withheld. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that the taxes are required to be withheld.
16. No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a Participant any right with respect to continuing the Participant's relationship as a Service Provider with the Company, nor will they interfere in any way with the Participant's right or the Company's right to terminate such relationship at any time, with or without cause, to the extent permitted by Applicable Laws.
17. Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting such Award, or such other later date as is
determined by the Administrator. Notice of the determination will be provided to each Participant within a reasonable time after the date of such grant.
18. Term of Plan. Subject to Section 22 of the Plan, the Plan will become effective upon its adoption by the Board. It will continue in effect for a term of ten (10) years from the date adopted by the Board, unless terminated earlier under Section 19 of the Plan.
19. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend, alter, suspend or terminate the Plan.
(b) Stockholder Approval. The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator's ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.
20. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares will not be issued pursuant to the exercise of an Award unless the exercise of such Award and the issuance and delivery of such Shares will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.
21. Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, will relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority will not have been obtained.
22. Stockholder Approval. The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. Such stockholder approval will be obtained in the manner and to the degree required under Applicable Laws.
LIMELIGHT NETWORKS, INC.
2007 EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF STOCK OPTION
Unless otherwise defined herein, the terms defined in the 2007 Equity Incentive Plan (the "Plan") will have the same defined meanings in this Notice of Grant of Stock Option (the "Notice of Grant") and Terms and Conditions of Stock Option Grant, attached hereto as Exhibit A (together, the "Agreement").
Participant has been granted an Option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Agreement, as follows:
Grant Number ------------------------------------ Date of Grant ------------------------------------ Vesting Commencement Date ------------------------------------ Number of Shares Granted ------------------------------------ Exercise Price per Share $ ----------------------------------- Total Exercise Price $ ----------------------------------- Type of Option Incentive Stock Option --- Nonstatutory Stock Option --- Term/Expiration Date ------------------------------------ |
Vesting Schedule:
Subject to accelerated vesting as set forth below or in the Plan, this Option will be exercisable, in whole or in part, according to the following vesting schedule:
[TWENTY-FIVE PERCENT (25%) OF THE SHARES SUBJECT TO THE OPTION WILL VEST
ON THE ONE (1) YEAR ANNIVERSARY OF THE VESTING COMMENCEMENT DATE, AND ONE FORTY-EIGHTH (1/48TH) OF THE SHARES SUBJECT TO THE OPTION WILL VEST EACH MONTH THEREAFTER ON THE SAME DAY OF THE MONTH AS THE VESTING COMMENCEMENT DATE (AND IF THERE IS NO CORRESPONDING DAY, ON THE LAST DAY OF THE MONTH), SUBJECT TO PARTICIPANT CONTINUING TO BE A SERVICE PROVIDER THROUGH EACH SUCH DATE.]
Termination Period:
This Option will be exercisable for [THREE (3) MONTHS] after Participant
ceases to be a Service Provider, unless such termination is due to Participant's
death or Disability, in which case this Option will be exercisable for [TWELVE
(12) MONTHS] after Participant ceases to be a Service Provider. Notwithstanding
the foregoing sentence, in no event may this Option be exercised after the
Term/Expiration Date as provided above and may be subject to earlier termination
as provided in Section 13(c) of the Plan.
By Participant's signature and the signature of the Company's representative below, Participant and the Company agree that this Option is granted under and governed by the terms and conditions of the Plan and this Agreement. Participant has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of the Plan and Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and Agreement. Participant further agrees to notify the Company upon any change in the residence address indicated below.
PARTICIPANT LIMELIGHT NETWORKS, INC.
------------------------------------- ------------------------------------ Signature By ------------------------------------- ------------------------------------ Print Name Title Address: ------------------------------------- |
EXHIBIT A
TERMS AND CONDITIONS OF STOCK OPTION GRANT
1. Grant. The Company hereby grants to the Participant named in the Notice of Grant ("Participant") an option (the "Option") to purchase the number of Shares, as set forth in the Notice of Grant, at the exercise price per Share set forth in the Notice of Grant (the "Exercise Price"), subject to the terms and conditions in this Agreement and the Plan, which is incorporated herein by reference. Subject to Section 19(c) of the Plan, in the event of a conflict between the terms and conditions of the Plan and the terms and conditions of this Agreement, the terms and conditions of the Plan will prevail.
If designated in the Notice of Grant as an Incentive Stock Option
("ISO"), this Option is intended to qualify as an Incentive Stock Option as
defined in Section 422 of the Code. However, if this Option is intended to be an
Incentive Stock Option, to the extent that it exceeds the $100,000 rule of Code
Section 422(d) it will be treated as a Nonstatutory Stock Option ("NSO").
Further, if for any reason this Option (or portion thereof) will not qualify as
an ISO, then, to the extent of such nonqualification, such Option (or portion
thereof) shall be regarded as a NSO granted under the Plan. In no event will the
Administrator, the Company or any Parent or Subsidiary or any of their
respective employees or directors have any liability to Participant (or any
other person) due to the failure of the Option to qualify for any reason as an
ISO.
2. Vesting Schedule. Except as provided in Section 3, the Option awarded by this Agreement will vest in accordance with the vesting provisions set forth in the Notice of Grant. Shares scheduled to vest on a certain date or upon the occurrence of a certain condition will not vest in Participant in accordance with any of the provisions of this Agreement, unless Participant will have been continuously a Service Provider from the Date of Grant until the date such vesting occurs.
3. Administrator Discretion. The Administrator, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the unvested Option at any time, subject to the terms of the Plan. If so accelerated, such Option will be considered as having vested as of the date specified by the Administrator.
4. Exercise of Option. This Option may be exercised only within the term set out in the Notice of Grant, and may be exercised during such term only in accordance with the Plan and the terms of this Agreement.
This Option is exercisable by delivery of an exercise notice, in the form attached as Exhibit B (the "Exercise Notice") or in a manner and pursuant to such procedures as the Administrator may determine, which will state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised (the "Exercised Shares"), and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. The Exercise Notice will be completed by Participant and delivered to the Company. The Exercise Notice will be accompanied by payment of the aggregate Exercise Price as to all Exercised Shares together with any applicable tax withholding. This Option will be deemed to be exercised
upon receipt by the Company of such fully executed Exercise Notice accompanied by the aggregate Exercise Price.
5. Method of Payment. Payment of the aggregate Exercise Price will be by any of the following, or a combination thereof, at the election of Participant:
(a) cash;
(b) check;
(c) consideration received by the Company under a formal cashless exercise program adopted by the Company in connection with the Plan; or
(d) surrender of other Shares which have a Fair Market Value on the date of surrender equal to the aggregate Exercise Price of the Exercised Shares.
6. Tax Obligations.
(a) Withholding of Taxes. Notwithstanding any contrary provision of this Agreement, no certificate representing the Shares will be issued to Participant, unless and until satisfactory arrangements (as determined by the Administrator) will have been made by Participant with respect to the payment of income, employment and other taxes which the Company determines must be withheld with respect to such Shares. To the extent determined appropriate by the Company in its discretion, it shall have the right (but not the obligation) to satisfy any tax withholding obligations by reducing the number of Shares otherwise deliverable to Participant. If Participant fails to make satisfactory arrangements for the payment of any required tax withholding obligations hereunder at the time of the Option exercise, Participant acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver the Shares if such withholding amounts are not delivered at the time of exercise.
(b) Notice of Disqualifying Disposition of ISO Shares. If the Option
granted to Participant herein is an ISO, and if Participant sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before the
later of (i) the date two (2) years after the Grant Date, or (ii) the date one
(1) year after the date of exercise, Participant will immediately notify the
Company in writing of such disposition. Participant agrees that Participant may
be subject to income tax withholding by the Company on the compensation income
recognized by Participant.
(c) Code Section 409A. Under Code Section 409A, an Option that vests
after December 31, 2004 (or that vested on or prior to such date but which was
materially modified after October 3, 2004) that was granted with a per Share
exercise price that is determined by the Internal Revenue Service (the "IRS") to
be less than the Fair Market Value of a Share on the date of grant (a "Discount
Option") may be considered "deferred compensation." A Discount Option may result
in (i) income recognition by Participant prior to the exercise of the option,
(ii) an additional twenty percent (20%) federal income tax, and (iii) potential
penalty and interest charges. The Discount Option may also result in additional
state income, penalty and interest tax to the Participant. Participant
acknowledges that the Company cannot and has not guaranteed that the IRS will
agree that the per Share exercise price of this Option equals or exceeds the
Fair Market Value of a Share
on the Date of Grant in a later examination. Participant agrees that if the IRS determines that the Option was granted with a per Share exercise price that was less than the Fair Market Value of a Share on the date of grant, Participant will be solely responsible for Participant's costs related to such a determination.
7. Rights as Stockholder. Neither Participant nor any person claiming under or through Participant will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to Participant. After such issuance, recordation and delivery, Participant will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares.
8. No Guarantee of Continued Service. PARTICIPANT ACKNOWLEDGES AND AGREES
THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED
ONLY BY CONTINUING AS A SERVICE PROVIDER AT THE WILL OF THE COMPANY (OR THE
PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) AND NOT THROUGH THE ACT
OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER.
PARTICIPANT FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO
NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A
SERVICE PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT
INTERFERE IN ANY WAY WITH PARTICIPANT'S RIGHT OR THE RIGHT OF THE COMPANY (OR
THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING PARTICIPANT) TO TERMINATE
PARTICIPANT'S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME, WITH OR WITHOUT
CAUSE.
9. Address for Notices. Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company at Limelight Networks, Inc., 2220 West 14th Street, Tempe, AZ 85281, or at such other address as the Company may hereafter designate in writing.
10. Grant is Not Transferable. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may be exercised during the lifetime of Participant only by Participant.
11. Binding Agreement. Subject to the limitation on the transferability of this grant contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.
12. Additional Conditions to Issuance of Stock. If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to Participant (or his or her estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not
acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority. Assuming such compliance, for income tax purposes the Exercised Shares will be considered transferred to Participant on the date the Option is exercised with respect to such Exercised Shares.
13. Plan Governs. This Agreement is subject to all terms and provisions of the Plan. In the event of a conflict between one or more provisions of this Agreement and one or more provisions of the Plan, the provisions of the Plan will govern. Capitalized terms used and not defined in this Agreement will have the meaning set forth in the Plan.
14. Administrator Authority. The Administrator will have the power to interpret the Plan and this Agreement and to adopt such rules for the administration, interpretation and application of the Plan as are consistent therewith and to interpret or revoke any such rules (including, but not limited to, the determination of whether or not any Shares subject to the Option have vested). All actions taken and all interpretations and determinations made by the Administrator in good faith will be final and binding upon Participant, the Company and all other interested persons. No member of the Administrator will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
15. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to Options awarded under the Plan or future Options that may be awarded under the Plan by electronic means or request Participant's consent to participate in the Plan by electronic means. Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through any on-line or electronic system established and maintained by the Company or another third party designated by the Company.
16. Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
17. Agreement Severable. In the event that any provision in this Agreement will be held invalid or unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.
18. Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties on the subjects covered. Participant expressly warrants that he or she is not accepting this Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company.
19. Amendment, Suspension or Termination of the Plan. By accepting this Award, Participant expressly warrants that he or she has received an Option under the Plan, and has received, read and understood a description of the Plan. Participant understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.
20. Governing Law. This Agreement shall be governed by the laws of the State of Arizona, without giving effect to the conflict of law principles thereof. For purposes of litigating any dispute that arises under this Option or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Arizona, and agree that such litigation shall be conducted in the courts of Maricopa County, Arizona, or the federal courts for the United States for the District of Arizona, and no other courts, where this Option is made and/or to be performed.
EXHIBIT B
LIMELIGHT NETWORKS, INC.
2007 EQUITY INCENTIVE PLAN
EXERCISE NOTICE
Limelight Networks, Inc.
2220 West 14th Street
Tempe, AZ 85281
1. Exercise of Option. Effective as of today, ________________, _____, the undersigned ("Purchaser") hereby elects to purchase ______________ shares (the "Shares") of the Common Stock of Limelight Networks, Inc. (the "Company") under and pursuant to the 2007 Equity Incentive Plan (the "Plan") and the Stock Option Agreement dated ________ (the "Agreement"). The purchase price for the Shares will be $_____________, as required by the Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the full purchase price of the Shares and any required tax withholding to be paid in connection with the exercise of the Option.
3. Representations of Purchaser. Purchaser acknowledges that Purchaser has received, read and understood the Plan and the Agreement and agrees to abide by and be bound by their terms and conditions.
4. Rights as Stockholder. Until the issuance (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company) of the Shares, no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Shares so acquired will be issued to Participant as soon as practicable after exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date of issuance, except as provided in Section 14 of the Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer adverse tax consequences as a result of Purchaser's purchase or disposition of the Shares. Purchaser represents that Purchaser has consulted with any tax consultants Purchaser deems advisable in connection with the purchase or disposition of the Shares and that Purchaser is not relying on the Company for any tax advice.
6. Entire Agreement; Governing Law. The Plan and Agreement are incorporated herein by reference. This Exercise Notice, the Plan and the Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Purchaser with respect to the subject matter hereof, and may not be modified adversely to the Purchaser's interest except by means of a writing signed by the Company and Purchaser. This agreement is governed by the internal substantive laws, but not the choice of law rules, of Arizona.
Submitted by: Accepted by: PURCHASER LIMELIGHT NETWORKS, INC. ------------------------------------- ------------------------------------ Signature By ------------------------------------- ------------------------------------ Print Name Its Address: ------------------------------------- |
Exhibit 10.4
LIMELIGHT NETWORKS, INC.
JEFF LUNSFORD EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of October 20, 2006 (the "Signing Date"), by and between Limelight Networks, Inc. (the "Company") and Jeff Lunsford ("Executive").
1. Duties and Scope of Employment.
(a) Positions and Duties. No later than November 20, 2006 (the "Effective Date"), Executive will commence service as the Company's Chief Executive Officer and President. Executive will report to the Company's Board of Directors (the "Board"), the date on which Executive actually commences such service as the Company's Chief Executive Officer shall be the "Effective Date." As of the Effective Date, Executive will render such business and professional services in the performance of his duties, consistent with Executive's position within the Company, as will reasonably be assigned to him by the Board. The period Executive is employed by the Company under this Agreement is referred to herein as the "Employment Term". In the event that Executive fails (i) to tender his resignation as President and Chief Executive Officer with his current employer by 12:01 pm Pacific Daylight Time on October 27, 2006 or (ii) to begin full-time employment with the Company by November 20, 2006 and a Change of Control has not occurred, this Agreement, other than the last sentence of paragraph 3(f)(i), shall be null and void.
(b) Board Membership. As of the Effective Date, Executive will serve as a member of the Board and as the Chairman of the Board. At each annual meeting of the Company's stockholders during the Employment Term, the Company will nominate Executive to serve as a member of the Board. Executive's service as a member of the Board will be subject to any required stockholder approval. Upon the termination of Executive's employment for any reason, unless otherwise requested by the Board, Executive will be deemed to have resigned from the Board (and all other positions held at the Company and its affiliates) voluntarily, without any further required action by Executive, as of the end of Executive's employment and Executive, at the Board's request, will execute any documents necessary to reflect his resignation. This paragraph is intended to clarify that upon Executive's termination, his positions on the Company's Board and otherwise will terminate immediately and shall not be deemed to in any way modify Executive's rights to severance under this Agreement.
(c) Obligations. During the Employment Term, Executive, except as provided below, 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, (i) 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, and (ii) serve on the boards of directors of WebSideStory, Inc. and Midtown Bank and Trust Company.
(i) 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. Executive further represents that he has disclosed to the Company in writing all threatened, pending, or actual claims that are unresolved and still outstanding as of the Signing Date, in each case, against Executive of which he is aware, if any, as a result of his employment with any previous employer or his membership on any boards of directors.
(d) Other Entities. Executive agrees to serve if appointed, without additional compensation, as an officer and director for each of the Company's subsidiaries, partnerships, joint ventures, limited liability companies and other affiliates, including entities in which the Company has a significant investment as determined by the Company. As used in this Agreement, the term "affiliates" will mean any entity controlled by, controlling, or under common control of the Company.
2. At-Will Employment. Executive and the Company agree that Executive's employment with the Company constitutes "at-will" employment. Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive. However, as described in this Agreement, Executive may be entitled to severance benefits depending upon the circumstances of Executive's termination of employment.
3. Compensation.
(a) Base Salary. Commencing with the Effective Date, the Company will pay Executive an annual salary of $325,000 as compensation for his services (such annual salary, as is then effective, to be referred to herein as "Base Salary"). Executive's Base Salary will be subject to annual review (subject to the provisions of Section 10(e)(iii) of this Agreement). Notwithstanding the foregoing, Executive's annual salary shall be increased to $400,000 effective upon the closing of an initial public offering of the Company's Common Stock. The Base Salary will be paid periodically in accordance with the Company's normal payroll practices and will be subject to the usual, required withholdings.
(b) Annual Incentive. Executive will be eligible to receive annual cash incentives payable for the achievement of performance goals established by the Board or by the Compensation Committee of the Board (the "Committee"). During calendar year 2007, Executive's target annual incentive ("Target Annual Incentive") will be $275,000. The actual earned annual cash incentive, if any, payable to Executive for any performance period will depend upon, the extent to which the applicable performance goal(s) specified by the Committee with the input of Executive are achieved.
(c) Signing Bonus. Executive shall receive a $100,000 signing bonus. In addition, Executive shall be entitled to such additional bonus, if any, as determined in good faith by the Committee, which will be based upon Executive's receipt, if any, of his bonus associated with
performance by Executive while at Executive's prior employer. Executive represents that he is entitled to certain bonus payments by his current employer based upon his and his employer's performance during calendar year 2006. In the event that Executive's employer fails to pay amounts owed to Executive pursuant to the 2006 WSSI Bonus Plan, the Company shall pay such additional amounts, which in no event shall exceed $150,000.00, that are determined as follows: the amount calculated under the WSSI 2006 Bonus Plan owing to Executive, minus the amount actually paid to Executive by his current employer, WebSideStory, Inc. Executive agrees to provide such assistance in calculating the amounts owing under the WSSI 2006 Bonus Plan as the Committee reasonably requests and to assign any and all rights Executive may have against WebSideStory, Inc. to recover such bonus to the extent that such bonus is not paid to executive but is paid by the Company. Notwithstanding the actual date of payment of any bonus under this paragraph 3(c), such bonus shall not constitute payments under paragraph 3(b) above.
(d) Management Carve-Out. Executive shall be entitled to participate in the Company's 2006 Sale Participation Program. On the 120th day after the Signing Date, Executive will receive 107,500 Participating Units, which shall entitle Executive to certain rights under the 2006 Sale Participation Program. Notwithstanding the foregoing, in a Change of Control transaction in which the Series B Preferred Stock of the Company does not convert into common stock of the Company, it is the intent of the parties that the total amount that Executive would receive in such transaction, based on Executive's equity ownership (both stock and options) and interest in the 2006 Sale Participation Program, shall not exceed $9,780,000.00 and Executive shall be deemed to have returned such number of Participating Units (up to all of such Units) as to limit the amount Executive would receive from all such equity interests and Participating Units to such $9,780,000.00 amount. For purposes of determining the amount Executive would receive in connection with such Change of Control transaction, all options granted and stock issued to executive shall be deemed to be fully vested and not subject to any rights of first refusal irrespective of the actual treatment of such options and restricted stock pursuant to paragraphs 3 and 7 of this Agreement
(e) Acquisition Bonus. If on or prior to the 120th day following the Signing Date, the Company enters into a definitive agreement that contemplates a transaction or series of related transactions that, upon closing of such transaction or transactions, would constitute a Change of Control (as defined below), (i) an aggregate of 1,000,000 shares (which amount shall include any shares of stock previously vested) subject to the Initial Grant (as defined below) shall vest (the "Acquisition Bonus") if and when such transaction actually closes. Notwithstanding the foregoing, such Acquisition Bonus shall only be payable if such Change of Control transaction closes within 12 months of the Signing Date. The parties hereto agree that such payment of the Acquisition Bonus shall be the only payment based upon equity ownership, options granted or Participation Units held by Executive. For the avoidance of doubt upon the closing of such Change of Control, (i) the $9.80 Option shall terminate, (ii) the $19.80 Option shall terminate, and (iii) the Participation Units shall be deemed to be surrendered by Executive.
(f) Equity Awards.
(i) On the Signing Date, Executive will be granted 1,000,000 shares of restricted Common Stock of the Company (the "Initial Grant"). The Initial Grant will be granted under and subject to the terms, definitions and provisions of the Company's 2003 Incentive Compensation Plan (the "Plan"). Twelve and one-half percent (12.5%) of the shares subject to the
Initial Grant shall be vested on the date of grant. An additional twelve and one-half percent (12.5%) of the shares subject to the Initial Grant shall be vested on the 120th day after the Signing Date and 1/48th of the shares subject to the Initial Grant will vest monthly thereafter assuming Executive's continued employment with the Company on each scheduled vesting date. Except as provided in this Agreement, the Initial Grant will be subject to the Company's standard terms and conditions under the Plan. Notwithstanding the previous sentence to the contrary, if Executive terminates his employment under circumstances identified under paragraph 7(c) (other than the last sentence thereof) within the first year following the Effective Date or fails to become a full-time employee of the Company by November 20, 2006, Executive shall sell to the Company all shares of Company stock then held by Executive for an aggregate of $1.00.
(ii) On the Effective Date, the Company will also issue to Executive an option to purchase 500,000 shares of Common Stock at a per share exercise price equal $9.80 per share (the "$9.80 Option"). The $9.80 Option will be granted under and subject to the terms, definitions and provisions of the Plan and will be scheduled to vest at a rate of 25% of the shares subject to the $9.80 Option on the first anniversary of the grant and 1/48 of the shares will be scheduled to vest monthly thereafter assuming Executive's continued employment with the Company on each scheduled vesting date. Except as provided in this Agreement, the $9.80 Option will be subject to the Company's standard terms and conditions for options granted under the Plan.
(iii) The Company will also issue to Executive an option to purchase 500,000 shares of Common Stock at a per share exercise price equal $19.80 per share (the "$19.80 Option"). The $19.80 Option will be granted under and subject to the terms, definitions and provisions of the Plan and beginning on the second anniversary of the Effective Date, such option will vest at a rate of 1/48 of the shares subject to such option monthly thereafter assuming Executive's continued employment with the Company on each scheduled vesting date. Except as provided in this Agreement, the $19.80 Option will be subject to the Company's standard terms and conditions for options granted under the Plan.
(iv) In the event that the Company consummates a Change of Control transaction, 50% (subject to the following sentence) of Executive's then outstanding unvested equity awards will vest. 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 3(f)(iv).
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. Such reimbursement shall include the actual costs incurred by Executive in flying his personal, single engine airplane on business travel; provided, however, that the maximum reimbursable for such expenses shall be $400.00 per hour based on the hobbs time. In addition, the Company shall reimburse Executive (a) for his expenses in renting an apartment in the Phoenix area, which expenses shall not exceed $2,000.00 per month, and (b) up to $2,500 for his expenses in engaging legal counsel to review this Agreement on his behalf.
6. Termination of Employment. In the event Executive's employment with the Company terminates for any reason, Executive will be entitled to any (a) unpaid Base Salary accrued up to the effective date of termination; (b) unpaid, but earned and accrued annual incentive for any completed fiscal year as of his termination of employment; (c) pay for accrued but unused vacation; (d) benefits or compensation as provided under the terms of any employee benefit and compensation agreements or plans applicable to Executive; (e) unreimbursed business expenses required to be reimbursed to Executive; and (f) rights to indemnification Executive may have under the Company's Certificate of Incorporation, Bylaws, this Agreement, and/or separate indemnification agreement, as applicable. In the event Executive's employment with the Company terminates for any reason (other than Cause), Executive will be entitled to exercise any outstanding stock options for at least twenty-four (24) months after the later of such termination of employment or the date upon which Executive ceases to provide any other services to the Company or any of its affiliates, whether as a director, independent contractor or otherwise, but in no event later than the applicable scheduled expiration date of such award (in the absence of any termination of employment) as set forth in the award agreement. For purposes of clarity, the term "expiration date" shall be the scheduled expiration of the option agreement and not the period that Executive shall be entitled to exercise such option. In addition, if the termination is by the Company without Cause or Executive resigns for Good Reason, Executive will be entitled to the amounts and benefits specified in Section 7.
7. Severance.
(a) Termination Without Cause or Resignation for Good Reason other than in Connection with a Change of Control. If Executive's employment is terminated by the Company without Cause or if Executive resigns for Good Reason, and such termination is not in Connection with a Change of Control, then, subject to Section 8, Executive will receive: (i) continued payment of Executive's Base Salary (subject to applicable tax withholdings) for twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (ii) the current year's Target Annual Incentive pro-rated to the date of termination, with such pro-rated amount to be calculated by multiplying the current year's Target Annual Incentive by a fraction with a numerator equal to the number of days inclusive between the start of the current calendar year and the date of termination and a denominator equal to 365, such amounts to be paid at the same time as similar bonus payments are made to the Company's other executive officers, and (iii) reimbursement for premiums paid for continued health benefits for Executive (and any eligible dependents) under the Company's health plans until the earlier of (A) twelve (12) months, payable when such premiums are due (provided Executive validly elects to continue coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA")), or (B) the date upon which Executive and Executive's eligible dependents become covered under similar plans. Notwithstanding the foregoing, if Executive is
terminated without Cause or resigns for Good Reason, and such termination is not in Connection with a Change of Control and occurs prior to January 2,2007, then "six (6) months" will be substituted for "twelve (12) months" in clause (i) of the preceding sentence.
(b) Termination Without Cause or Resignation for Good Reason in Connection with a Change of Control. If Executive's employment is terminated by the Company without Cause or by Executive for Good Reason, and the termination is in Connection with a Change of Control, then, subject to Section 8, Executive will receive: (i) continued payment of Executive's Base Salary for the year in which the termination occurs (subject to applicable tax withholdings), for twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (ii) the payment in an amount equal to 100% of Executive's Target Annual Incentive for the year in which the termination occurs (subject to applicable tax withholdings), such amounts to be paid in accordance with the Company's normal payroll policies over the course of twelve (12) months; (iii) 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 7(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 6, (i) all further vesting of Executive's outstanding equity awards will terminate immediately; (ii) all payments of compensation by the Company to Executive hereunder will terminate immediately, and (iii) Executive will be eligible for severance benefits only in accordance with the Company's then established plans. In the event that Executive's employment is terminated due to death or Disability, twenty-five percent (25%) of executive's then unvested options shall vest.
8. Conditions to Receipt of Severance; No Duty to Mitigate.
(a) Separation Agreement and Release of Claims. The receipt of any
severance or other benefits pursuant to Section 7 will be subject to Executive
signing and not revoking a separation agreement and release of claims in a form
reasonably acceptable to the Company. No severance or other benefits pursuant to
Section 7 will be paid or provided until the separation agreement and release
agreement becomes effective.
(b) Non-solicitation and Non-competition. The receipt of any severance
or other benefits pursuant to Section 7 will be subject to Executive agreeing
that during the Employment Term and for twenty-four (24) months thereafter,
Executive will not (i) solicit any employee of the Company (other than
Executive's personal assistant) for employment other than at the Company, or
(ii) directly or indirectly engage in, have any ownership interest in or
participate in any entity that as of the date of termination, competes with the
Company in any substantial business of the Company or any business reasonably
expected to become a substantial business of the Company. If Executive violates
this Section 8(b), the Company's sole form of recourse will be to terminate any
future
payments or benefits owed to Executive pursuant to Section 7 of this Agreement. Executive's passive ownership of not more than 1% of any publicly traded company and/or 5% ownership of any privately held company will not constitute a breach of this Section 8(b). Public solicitation, such as by taking out ads in a newspaper, advertising on the web and the like, not specifically aimed at employees of the Company, will not constitute a breach of this Section 8(b).
(c) Nondisparagement. During the Employment Term and Continuance Period, Executive and the Company in its official communications will not knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding the other. The Company will instruct its officers and directors to not knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Executive. Notwithstanding the foregoing, nothing contained in this agreement will be deemed to restrict Executive, the Company or any of the Company's current or former officers and/or directors from providing factual information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
(d) Other Requirements. Executive's receipt of continued severance payments pursuant to Section 7 will be subject to Executive continuing to comply with the terms of the Confidential Information Agreement and the provisions of this Section 8.
(e) No Duty to Mitigate. Executive will not be required to mitigate the amount of any payment contemplated by this Agreement, nor will any earnings that Executive may receive from any other source reduce any such payment.
9. Excise Tax. In the event that the benefits provided for in this Agreement constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then Executive's severance benefits payable under the terms of this Agreement will be, at Executive's option, either (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, WHICHEVER OF THE FOREGOING AMOUNTS, TAKING INTO ACCOUNT THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME TAXES AND THE EXCISE TAX, RESULTS IN THE RECEIPT BY EXECUTIVE ON AN AFTER-TAX BASIS, OF THE GREATEST AMOUNT OF SEVERANCE BENEFITS.
10. Definitions.
(a) Cause. For purposes of this Agreement, "Cause" will mean:
(i) Acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of Executive with respect to Executive's obligations under this Agreement or otherwise relating to the business of Company;
(ii) Any act of personal dishonesty taken by Executive in connection with his responsibilities as an employee of the Company with the intention or reasonable expectation that such action may result in the substantial personal enrichment of Executive;
(iii) Executive's conviction of, or plea of nolo contendere to, a felony that the Board reasonably believes has had or will have a material detrimental effect on the Company's reputation or business;
(iv) A breach of any fiduciary duty owed to the Company by Executive that has a material detrimental effect on the Company's reputation or business;
(v) Executive being found liable in any Securities and Exchange Commission or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not Executive admits or denies liability);
(vi) Executive (A) obstructing or impeding; (B) endeavoring to obstruct, impede or improperly influence, or (C) failing to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an "Investigation"). However, Executive's failure to waive attorney-client privilege relating to communications with Executive's own attorney in connection with an Investigation will not constitute "Cause";
(vii) Executive's disqualification or bar by any governmental or self-regulatory authority from serving in the capacity contemplated by this Agreement or Executive's loss of any governmental or self-regulatory license that is reasonably necessary for Executive to perform his responsibilities to the Company under this Agreement, if (A) the disqualification, bar or loss continues for more than thirty (30) days, and (B) during that period the Company uses its good faith efforts to cause the disqualification or bar to be lifted or the license replaced. While any disqualification, bar or loss continues during Executive's employment, Executive will serve in the capacity contemplated by this Agreement to whatever extent legally permissible and, if Executive's employment is not permissible, Executive will be placed on leave (which will be paid to the extent legally permissible).
(b) Change of Control. For purposes of this Agreement, "Change of Control" will mean the occurrence of any of the following events:
(i) The consummation by the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation;
(ii) The approval by the stockholders of the Company, or if stockholder approval is not required, approval by the Board, of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets;
(iv) 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 Goldman Sachs 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 7.
(d) Disability. For purposes of this Agreement, "Disability" will mean Executive's absence from his responsibilities with the Company on a full-time basis for 120 calendar days in any consecutive twelve (12) month period as a result of Executive's mental or physical illness or injury.
(e) Good Reason. For purposes of this Agreement, "Good Reason" means the occurrence of any of the following, without Executive's express written consent:
(i) An adverse change in Executive's title or reporting relationship, or a significant reduction of Executive's duties, position, or responsibilities, relative to Executive's duties, position, or responsibilities in effect immediately prior to such reduction;
(ii) A material reduction in the kind or level of employee benefits to which Executive is entitled immediately prior to such reduction with the result that Executive's overall benefits package is significantly reduced. Notwithstanding the foregoing, a one-time reduction that also is applied to substantially all other executive officers of the Company and that reduces the level of employee benefits by a percentage reduction of 10% or less will not constitute "Good Reason";
(iii) A reduction in Executive's Base Salary or Target Annual Incentive as in effect immediately prior to such reduction. Notwithstanding the foregoing, a one-time reduction that also is applied to substantially all other executive officers of the Company and which one-time reduction reduces the Base Salary or Target Annual Incentive by a percentage reduction of 10% or less in the aggregate will not constitute "Good Reason";
(iv) The relocation of Executive to a facility or location more than 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.
While the Company is not subject to the reporting requirements under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the failure of the Company's stockholders to elect or reelect Executive to the Board shall constitute "Good Reason" for purposes of this Agreement. After such time as the Company becomes subject to the reporting requirements under the Exchange Act, the failure of the Company's stockholders to elect or reelect Executive to the Board will not constitute "Good Reason" for purposes of this Agreement.
(f) In Connection with a Change of Control. For purposes of this Agreement, a termination of Executive's employment with the Company is "in Connection with a Change of Control" if Executive's employment is terminated within three (3) months prior the execution of an agreement that results in a Change of Control or twelve (12) months following a Change of Control
11. Indemnification. Subject to applicable law, Executive will be provided indemnification to the maximum extent permitted by the Company's Articles 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.
12. Confidential Information. Executive will execute the form of Employment, Confidential Information and Invention Assignment Agreement, appended hereto as Exhibit A (the "Confidential Information Agreement"). In the event of any inconsistency between the terms of this Agreement and the terms of the Confidential Information Agreement, this Agreement will prevail.
13. Assignment. This Agreement will be binding upon and inure to the benefit of (a) the heirs, executors and legal representatives of Executive upon Executive's death, and (b) any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, "successor" means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger, or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company. None of the rights of Executive to receive any form of compensation payable pursuant to this Agreement may be assigned or transferred except by will or the laws of descent and distribution. Any other attempted assignment, transfer, conveyance, or other disposition of Executive's right to compensation or other benefits will be null and void. This Section 13 will in no way prevent Executive from transferring any vested property he owns.
14. Notices. All notices, requests, demands and other communications called for hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally; (b) one (1) day after being sent overnight by a well-established commercial overnight service, or (c) four (4) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing:
If to the Company:
If to Executive:
at the last residential address known by the Company.
With a copy to:
15. Severability. If any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement will continue in full force and effect without said provision.
16. Arbitration. The parties agree that any and all disputes arising out of the terms of this Agreement, Executive's employment by the Company, Executive's service as an officer or director
of the Company, or Executive's compensation and benefits, their interpretation and any of the matters herein released, will be subject to binding arbitration. In the event of a dispute, the parties (or their legal representatives) will promptly confer to select a single Arbitrator mutually acceptable to both parties. If the parties cannot agree on an Arbitrator, then the moving party may file a Demand for Arbitration with the American Arbitration Association ("AAA") in Phoenix, Arizona, who will be selected and appointed consistent with the AAA-Employment Dispute Resolution Rules. Any arbitration will be conducted in a manner consistent with AAA National Rules for the Resolution of Employment Disputes. The Parties further agree that the prevailing party in any arbitration will be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. This paragraph will not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the Parties and the subject matter of their dispute relating to Executive's obligations under this Agreement and the Confidential Information Agreement.
17. Integration. This Agreement, together with the Confidential Information Agreement, the forms of equity award grant that describe Executive's outstanding equity awards and the preexisting indemnification agreement between the parties, represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in a writing and signed by duly authorized representatives of the parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise, or understanding that is not in this Agreement. To the extent that any provisions of this Agreement conflict with those of any other agreement to be signed upon Executive's hire, the terms in this Agreement will prevail.
18. Waiver of Breach. The waiver of a breach of any term or provision of this Agreement, which must be in writing, will not operate as or be construed to be a waiver of any other previous or subsequent breach of this Agreement.
19. Survival. The Confidential Information Agreement and the Company's and Executive's responsibilities under Sections 3(c), 6, 7, 8 and 11 will survive the termination of this Agreement.
20. Headings. All captions and Section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.
21. Tax Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes.
22. Governing Law. This Agreement will be governed by the laws of the state of Arizona without regard to its conflict of laws provisions.
23. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this matter with and obtain advice from his private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement.
24. Code Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines that Section 409A of the Code will result in the imposition of additional tax related to a payment of any severance or other benefits otherwise due to Executive on or within the six (6) month period following Executive's termination or separation from service (as defined pursuant to said Section 409A), the severance benefits will accrue during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the date of Executive's termination or separation from service, as the case may be. All subsequent payments, if any, will be payable as provided in this Agreement. The Company and Executive agree to work together in good faith to consider amendments to this Agreement necessary or appropriate to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code and any temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder.
25. Counterparts. This Agreement may be executed in counterparts, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by a duly authorized officer, as of the day and year written below.
COMPANY:
LIMELIGHT NETWORKS, INC.
/s/ William H. Rinehart Date: 10/20, 2006 ------------------------------------- Title: ----------------------------- |
EXECUTIVE: __________________________
/s/ Jeff Lunsford Date: 10/20, 2006 ------------------------------------- Jeff Lunsford |
[SIGNATURE PAGE TO LUNSFORD EMPLOYMENT AGREEMENT]
Exhibit 10.5
LIMELIGHT NETWORKS, INC.
MATT HALE EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of November 22, 2006 (the "Signing Date"), by and between Limelight Networks, Inc. (the "Company") and Matt Hale ("Executive").
1. Duties and Scope of Employment.
(a) Positions and Duties. No later than December 1, 2006 (the "Effective Date"), Executive will commence service as the Company's Chief Financial Officer. Executive will report to the Company's Board of Directors (the "Board"), the date on which Executive actually commences such service as the Company's Chief Financial Officer shall be the "Effective Date." As of the Effective Date, Executive will render such business and professional services in the performance of his duties, consistent with Executive's position within the Company, as will reasonably be assigned to him by the Board. The period Executive is employed by the Company under this Agreement is referred to herein as the "Employment Term." In the event that Executive fails (i) to tender his resignation with his current employer by 11:59 pm Pacific Daylight Time on November 29, 2006, (ii) to begin at least half-time employment with the Company by December 1, 2006, or (iii) to begin full-time employment with the Company within sixty (60) days following the Effective Date, this Agreement and any options granted pursuant to the terms hereof shall be null and void upon the date of such failure.
(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.
(i) 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. Executive further represents that he has disclosed to the Company in writing all threatened, pending, or actual claims that are unresolved and still outstanding as of the Signing Date, in each case, against Executive of which he is aware, if any, as a result of his employment with any previous employer or his membership on any boards of directors.
(c) Other Entities. Executive agrees to serve if appointed, without additional compensation, as an officer and director for each of the Company's subsidiaries, partnerships, joint ventures, limited liability companies and other affiliates, including entities in which the Company has a significant investment as determined by the Company. As used in this Agreement, the term "affiliates" will mean any entity controlled by, controlling, or under common control of the Company.
2. At-Will Employment. Executive and the Company agree that Executive's employment with the Company constitutes "at-will" employment. Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive. However, as described in this Agreement, Executive may be entitled to severance benefits depending upon the circumstances of Executive's termination of employment.
3. Compensation.
(a) Base Salary. Commencing with the Effective Date, the Company will pay Executive an annual salary of $225,000 as compensation for his services (such annual salary, as is then effective, to be referred to herein as "Base Salary"). Executive's Base Salary will be subject to annual review (subject to the provisions of Section 11(e)(iii) of this Agreement). Notwithstanding the foregoing, Executive's annual salary shall be increased to $275,000 effective upon the closing of an initial public offering of the Company's Common Stock. The Base Salary will be paid periodically in accordance with the Company's normal payroll practices and will be subject to the usual, required withholdings.
(b) Annual Bonus. Commencing with the Effective Date, the Company will pay Executive an annual bonus of $50,000 (the "Annual Bonus"). The Annual Bonus will be paid periodically in accordance with the Company's normal payroll practices and will be subject to the usual, required withholdings. Notwithstanding the foregoing, Executive's Annual Bonus shall terminate effective upon the closing of an initial public offering of the Company's Common Stock.
(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 2007, Executive's target annual incentive ("Target Annual Incentive") will be $50,000. During calendar year 2007, the Target Annual Incentive shall be adjusted upward in an amount equal to any portion of the Annual Bonus that the Company has not paid to Executive. The actual earned annual cash incentive, if any, payable to Executive for any performance period will depend upon the extent to which the applicable performance goal(s) specified by the Committee with the input of Executive are achieved.
(d) Management Carve-Out. Executive shall be entitled to participate in the Company's 2006 Sale Participation Program. On the 90th day after the Signing Date, Executive will receive 25,000 Participating Units, which shall entitle Executive to certain rights under the 2006 Sale Participation Program. Notwithstanding the foregoing, in a Change of Control transaction in which the Series B Preferred Stock of the Company does not convert into common stock of the Company, it is the intent of the parties that the total amount that Executive would receive in such transaction,
based on Executive's equity ownership (both stock and options) and interest in the 2006 Sale Participation Program, shall not exceed $2,300,000 and Executive shall be deemed to have returned such number of Participating Units (up to all of such Units) as to limit the amount Executive would receive from all such equity interests and Participating Units to such $2,300,000 amount. For purposes of determining the amount Executive would receive in connection with such Change of Control transaction, all options granted and stock issued to executive shall be deemed to be fully vested and not subject to any rights of first refusal irrespective of the actual treatment of such options and restricted stock pursuant to paragraphs 3 and 8 of this Agreement.
(e) Acquisition Bonus. If on or prior to the 90th day following the Signing Date, the Company enters into a definitive agreement that contemplates a transaction or series of related transactions that, upon closing of such transaction or transactions, would constitute a Change of Control (as defined below), the Company shall pay Executive a bonus of $1,500,000 (the "Acquisition Bonus"). The parties hereto agree that such payment of the Acquisition Bonus shall be the only payment based upon equity ownership, options granted or Participation Units held by Executive. For the avoidance of doubt, upon the closing of such Change of Control, (i) the Initial Grant shall be deemed to be surrendered by Executive, (ii) the $10.00 Option shall terminate, and (iii) the Participation Units shall be deemed to be surrendered by Executive.
(f) Equity Awards.
(i) On the Effective Date, Executive will be granted 230,000
shares of restricted Common Stock of the Company (the "Initial Grant"). The
Initial Grant will be granted under and subject to the terms, definitions and
provisions of the Company's Amended and Restated 2003 Incentive Compensation
Plan (the "Plan"). One-fourth (1/4th) of the total number of shares of Common
Stock subject to the Initial Grant shall vest and become exercisable on the one
(1) year anniversary of the Effective Date, and an additional one forty-eighth
(l/48th) of the total number of shares of Common Stock subject to the Initial
Grant shall vest and become exercisable on the same day as the Effective Date of
each calendar month thereafter, provided that the Continuous Service (as such
term is defined in the Plan) of the Executive continues through and on such
date. Except as provided in this Agreement, the Initial Grant will be subject to
the Company's standard terms and conditions under the Plan.
(ii) On the Effective Date, the Company will also issue to Executive an option to purchase 70,000 shares of Common Stock at a per share exercise price equal to $10.00 per share (the "$10.00 Option"). The $10.00 Option will be granted under and subject to the terms, definitions and provisions of the Plan. One-fourth (1/4th) of the total number of shares of Common Stock subject to the $10.00 Option shall vest and become exercisable on the one (1) year anniversary of the Effective Date, and an additional one forty-eighth (1/48th) of the total number of shares of Common Stock subject to the $10.00 Option shall vest and become exercisable on the same day as the Effective Date of each calendar month thereafter, provided that the Continuous Service (as such term is defined in the Plan) of the Executive continues through and on such date. Except as provided in this Agreement, the $10.00 Option will be subject to the Company's standard terms and conditions for options granted under the Plan.
(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. 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 3(f)(iii).
4. Employee Benefits.
(a) Generally. Executive will be eligible to participate in accordance with the terms of all Company employee benefit plans, policies and arrangements that are applicable to other executive officers of the Company, as such plans, policies and arrangements may exist from time to time.
(b) Vacation. Executive will be entitled to receive paid annual vacation in accordance with Company policy for other senior executive officers, but with vacation accrual of not less than four (4) weeks per year.
5. Expenses. The Company will reimburse Executive for reasonable travel, entertainment and other expenses incurred by Executive in the furtherance of the performance of Executive's duties hereunder, in accordance with the Company's expense reimbursement policy as in effect from time to time. In addition, the Company shall reimburse Executive for up to $2,500 for his expenses in engaging legal counsel to review this Agreement on his behalf. The Company will also reimburse Executive for expenses actually incurred in renting an apartment in the Phoenix area, which expenses shall not exceed $2,000 per month, for a period not to exceed one hundred and eighty (180) days following the Effective Date, and such reimbursement shall not be deemed to be included in the Relocation Amount (defined below). The Company will also reimburse Executive for reasonable expenses actually incurred in the lease of an automobile and periodic travel between the Phoenix area and Atlanta for a period not to exceed one hundred and eighty (180) days following the Effective Date, and such reimbursement shall not be deemed to be included in the Relocation Amount (defined below).
6. Moving and Relocation Related Expenses. Executive will be entitled to a cash reimbursement to cover Executive's reasonable moving and relocation related expenses actually incurred in an amount which shall be grossed up to account for taxes incurred by Executive on such cash reimbursement (the "RELOCATION AMOUNT"), provided that in no circumstance shall the Relocation Amount exceed $140,000 in the aggregate, to be paid as the Relocation Amount is incurred, in accordance with the Company's normal payroll practices and subject to the usual, required withholding. For the avoidance of doubt, real estate commissions paid in connection with the sale of Executive's house in the Atlanta metro area shall be deemed relocation expenses and subject to reimbursement. In the event Executive's services to the Company terminate for any reason on or prior to the six (6) month anniversary of the Effective Date, Executive will return to the Company one hundred percent (100%) of the Relocation Amount; provided, however, that if Executive's services to the Company are (a) terminated by the Company without Cause (as defined below), (b) terminated by Executive for Good Reason (as defined below), (c) terminated due to Executive's death or disability, on or prior to the six (6) month anniversary of the Effective Date or
(c) terminated after a Change of Control, Executive shall not be required to return any portion of the Relocation Amount.
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 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 twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (ii) continued payment of Executive's Annual Bonus (subject to applicable tax withholdings) for twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (iii) the current year's Target Annual Incentive pro-rated to the date of termination, with such pro-rated amount to be calculated by multiplying the current year's Target Annual Incentive by a fraction with a numerator equal to the number of days inclusive between the start of the current calendar year and the date of termination and a denominator equal to 365, such amounts to be paid at the same time as similar bonus payments are made to the Company's other executive officers, and (iv) reimbursement for premiums paid for continued health benefits for Executive (and any eligible dependents) under the Company's health plans until the earlier of (A) twelve (12) months, payable when such premiums are due (provided Executive validly elects to continue coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA")), or (B) the date upon which Executive and Executive's eligible dependents become covered under similar plans.
(b) Termination Without Cause or Resignation for Good Reason in Connection with a Change of Control. If Executive's employment is terminated by the Company without Cause
or by Executive for Good Reason, and the termination is in Connection with a Change of Control, then, subject to Section 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) continued payment of Executive's Annual Bonus 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; (iii) 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. In the event that Executive's employment is terminated due to death or Disability, twenty-five percent (25%) of Executive's then unvested options 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 a form
reasonably acceptable to the Company. 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
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;
(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;
(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 Goldman Sachs 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, Annual Bonus 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, Annual Bonus 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.
(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 will execute the form of Employment, Confidential Information and Invention Assignment Agreement, appended hereto as Exhibit A (the "Confidential Information Agreement"). In the event of any inconsistency between the terms of this Agreement and the terms of the Confidential Information Agreement, this Agreement will prevail.
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:
2220 W 14th Street
Tempe, Arizona 85281
If to Executive:
at the last residential address known by the Company.
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.
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.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by a duly authorized officer, as of the day and year written below.
COMPANY:
LIMELIGHT NETWORKS, INC.
/s/ Jeff Lunsford Date: 11-22-, 2006 ------------------------------------- Jeff Lunsford, Chief Executive Officer |
EXECUTIVE:
/s/ Matt Hale Date: 11-22, 2006 ------------------------------------- Matt Hale |
[SIGNATURE PAGE TO HALE EMPLOYMENT AGREEMENT]
Exhibit 10.10
BANDWIDTH / CAPACITY AGREEMENT
BETWEEN
GLOBAL CROSSING BANDWIDTH, INC.
AND
LIMELIGHT NETWORKS, LLC
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
TABLE OF CONTENTS
Definitions
1. Services; Circuit/Port Term and Renewal; Circuit/Port Availability Date
2. Term of the Agreement
3. Billing and Payment; Minimum Commitments; Status and Responsibility for
Telecommunications Costs
4. Billing Disputes
5. Termination Rights
6. Taxes and Assessments
7. Warranties and Limitation Of Liability; Credits for Qualifying Outages
8. Indemnification
9. Relationship and Representation
10. Force Majeure
11. Waivers
12. Assignment
13. Confidentiality; Use of Intellectual Property
14. Integration
15. Construction
16. Governing Law
17. Notices
18. Compliance with Laws; Provision of Reasonable Assurance of Compliance
19. Third Parties
20. Survival of Provisions
21. Unenforceable Provisions
22. Cumulative Rights and Remedies
23. Amendments
24. Non-Solicitation
25. Authority
Exhibit A Schedule of Ancillary Fees Exhibit B Colocation Service Schedule Exhibit B(a) Colocation Schedule #1 Exhibit C IP Transit Service Schedule Exhibit C(a) IP Transit Service |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
BANDWIDTH / CAPACITY AGREEMENT
This Bandwidth / Capacity Agreement ("AGREEMENT") is entered into between the provider of Service(s), Global Crossing Bandwidth, Inc. on behalf of itself and any of its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), a California corporation located at 90 Castilian Drive, Goleta, CA 93117 and Limelight Networks, LLC ("LIMELIGHT" or "PURCHASER"), an Arizona limited liability company with its principal place of business located at 8936 N. Central Avenue, in Phoenix, AZ 85020 (hereinafter, Global Crossing and LimeLight may be referred to in the aggregate as "PARTIES", and each singularly as a "PARTY".)
PURPOSE
LimeLight desires to purchase certain telecommunications transport services, including dedicated circuit and or/port capacity from Global Crossing, for the transport of LimeLight's telecommunications or other traffic. For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows.
DEFINITIONS (not otherwise defined in the body of this Agreement or an attachment).
A. "AFFILIATE" means any entity directly or indirectly controlling, controlled by or under common control with a Party.
B. "BILLING CYCLE" is the Global Crossing billing cycle to which LimeLight's account hereunder is assigned by Global Crossing (a full billing cycle approximates 30 days).
C. "BUSINESS DAY" is Monday through Friday, 8:00 am to 5:00 PM EST, excluding nationally recognized holidays. Unless otherwise stated, "DAYS" refers to calendar days.
D. "DELINQUENT" (whether capitalized or not) means any invoiced amounts not properly disputed under Section 4 of this Agreement and remaining unpaid on the due date of the invoice, or invoiced and unpaid amounts after any point at which the disputed claim is not resolved in Purchaser's favor.
E. "Telecommunications" shall have the meaning assigned to it in the Telecommunications Act of 1996.
1. SERVICES; CIRCUIT/PORT TERM AND RENEWAL; CIRCUIT/PORT AVAILABILITY DATE:
1.1 SERVICES: LimeLight seeks certain services, as defined herein, and Global Crossing shall, in accordance with the terms of this Agreement, provide LimeLight with DS-1, DS-3, OC-3, OC-12, OC-48, Fast Ethernet, and Gigabit Ethernet circuit and port capacity and other applicable services as the same may be ordered by LimeLight, and as the order is accepted by Global Crossing hereunder from time to time. All such circuit and/or port capacity and related services are collectively referred to as the "SERVICES" Notwithstanding any other provision of this Agreement, Global Crossing shall not be required to provide to Purchaser any Service which would require that Purchaser be a carrier in the event that Purchaser is not a carrier, and does not elect to be certified as one.
1.2 SERVICE RENEWAL: Unless one Party provides the other with at least ninety (90) days prior written notice of its intent not to renew a Service after the Service's minimum commitment period expires, then, unless the Parties agree otherwise in writing, a Service shall automatically renew for an additional [ * ] period. The foregoing notice and renewal process shall also apply for each additional renewal period.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
1.3 DELIVERY OF A SERVICE: Upon receipt of a complete and accurate
service order for a Service, Global Crossing shall notify LimeLight
of its target date for the delivery of such Service (the "ESTIMATED
AVAILABILITY DATE"). Any Estimated Availability Date given by Global
Crossing to LimeLight shall be subject to Global Crossing's
then-current standard (or in an appropriate case, expedited)
interval guidelines. Global Crossing shall use reasonable efforts to
install each Service on or before the Estimated Availability Date,
but the inability of Global Crossing to deliver a Service by such
date, or within the interval guidelines, shall not be deemed a
breach of this Agreement by Global Crossing. If Global Crossing
fails to make any Service available within ninety (90) days after a
mutually agreed upon due date established after acceptance by Global
Crossing of the service order with respect to such Service (or such
greater time as is set forth in the interval guidelines),
LimeLight's sole remedy for later delivery shall be to cancel the
service order which pertains to such circuit and/or port upon ten
(10) days prior written notice to Global Crossing.
1.4 INTERCONNECTION WITH PURCHASER: At each end of the city pairs on which LimeLight orders Services, Global Crossing shall provide appropriate equipment in its POP locations identified on the lists accompanying the applicable service schedules attached to this Agreement, and necessary to connect the Services to LimeLight's Interconnection Facilities. The POPs will vary depending on the Services provided. Reference to POPs in this Agreement shall refer only to those POPs available from Global Crossing for the relevant Services. If LimeLight desires to install its own equipment in one or more POPs, and Global Crossing, in its sole discretion, agrees to such installation, the Parties shall execute a collocation agreement acceptable to both Parties. The form of collocation agreement will depend upon whether LimeLight is or is not a carrier. LimeLight agrees that its Interconnection Facilities shall connect to the Services provided by Global Crossing hereunder at the network interface points located in the Global Crossing POPs. As used herein, the term "INTERCONNECTION FACILITIES" shall mean transmission capacity provided by LimeLight or its third party supplier to extend the circuits or other Services provided by Global Crossing from a POP to any other location (e.g., a local access telephone service provided by a local telephone company). Global Crossing will treat as telecommunications any transmission which it determines, in its sole discretion, requires such treatment; provided however that Global Crossing shall first advise Purchaser of such fact and provide an opportunity for Purchaser to respond.
1.5 LOCAL INTERCONNECTION: For appropriate Services, including OC-N, DS-3 and lesser capacity circuits, Global Crossing shall use reasonable efforts to order local interconnection Facilities on behalf of LimeLight from LimeLight's designated supplier, or if LimeLight permits, a supplier selected by Global Crossing, with LimeLight remaining the customer of record for such facilities. LimeLight shall furnish Global Crossing with an acceptable letter of agency. LimeLight shall be billed directly by the supplier of such Interconnection Facilities, and shall defend and indemnify Global Crossing from any loss or liability incurred by Global Crossing as a result of Global Crossing's ordering Interconnection Facilities from any third party on LimeLight's behalf, including indemnifying Global Crossing with respect to all Telecommunications Costs, as hereinafter defined. LimeLight may, at its election, but subject to Global Crossing's prior written approval, order its own Interconnection Facilities. If any party other than Global Crossing provides Interconnection Facilities, then unavailability, incompatibility, delay in installation, or other impairment of Interconnection Facilities shall not excuse LimeLight's obligation to pay Global Crossing all rates or charges applicable to the circuits or ports, whether or not they are useable by LimeLight.
1.6 JURISDICTIONAL AND OTHER TRAFFIC INFORMATION: Global Crossing may require periodic estimates of the traffic mix of Purchaser, and the status of such traffic as interstate or other, whether or not such traffic constitutes telecommunications.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
2. TERM OF THE AGREEMENT:
2.1 INITIAL TERM This Agreement is binding on the Parties upon the date of execution by Global Crossing (after signature by Purchaser) (the "EFFECTIVE DATE") and, subject to the termination provisions of this Agreement, shall continue in effect for a period of [ * ] (the "Initial Term"). If a circuit or port remains installed beyond the Initial Term, then this Agreement shall remain in effect as long as such Service remains installed hereunder.
2.2 AGREEMENT AUTOMATIC RENEWAL: This Agreement renews automatically for successive [ * ] periods at the expiration of the Initial Term, unless cancelled in accordance with the termination provisions of this Agreement. The Initial Term and any renewal term shall constitute a "Term".
2.3 AGREEMENT CANCELLATION: Either Party may terminate this Agreement upon expiration of a Term upon written notice given not less than ninety (90) days prior to the expiration of the then-current Term.
2.4 NON-CANCELLATION OF CERTAIN SERVICES: Cancellation of the Agreement terminates Purchaser's right to obtain new Services from Global Crossing. The Parties acknowledge and agree that, except with respect to termination of this Agreement for a Party's uncured breach, termination of this Agreement shall not terminate certain of the Services with a Term set out in the applicable Exhibits, and in any event shall not relieve Purchaser from the obligation to pay for all Services used.
3. BILLING AND PAYMENT; MINIMUM COMMITMENTS; STATUS AND RESPONSIBILITY FOR TELECOMMUNICATIONS COSTS
3.1 PURCHASER OBLIGATIONS TO PAY; PURCHASER'S STATUS: LimeLight shall pay Global Crossing for the Services at the rates and charges set out in an Exhibit to this Agreement, or as the Parties may otherwise agree in writing. LimeLight is also liable for applicable taxes and governmental assessments with respect to its use of the Services. If LimeLight is required to provide security hereunder, then Global Crossing is not obligated to accept orders, or provide or continue to provide any Services , until the required security is received by Global Crossing. If LimeLight is an existing customer of Global Crossing, the rates and charges set forth herein shall be effective with LimeLight's first full Billing Cycle following the later of the Effective Date of this Agreement or the date Global Crossing receives any security required hereunder. Billing for a Service shall commence upon the earlier to occur of (i) 30 days following the date Global Crossing notifies LimeLight, in writing or via electronic transmission, that the ordered circuit or port (or other Service) is available from Global Crossing (regardless of whether or not LimeLight's Interconnection Facilities are installed and operational), or (ii) the date the ordered circuit capacity or port (or other Service) is first utilized by LimeLight (the "SERVICE DATE").
In the event that Purchaser is determined to be subject to the requirements for the payment of any access charge, fee, assessment, payphone or other surcharge, excise or other tax, funding contribution (including any contribution for or in support of universal service, however characterized) by any governmental entity with jurisdiction (in any such case "Telecommunications Cost(s)", or elects to accept or accede to such requirement(s), then Purchaser shall immediately and without delay notify Global Crossing of such event and thereafter, if Purchaser has not elected to terminate the provision of its services in such jurisdiction in whole or in part, then Purchaser shall become responsible for all such Telecommunications Costs.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
In the event that Purchaser is deemed an "end user", Global Crossing may, at its election, immediately assign this Agreement to one or more of its affiliates that primarily serve end users, collecting such Telecommunications Costs as their agent, and Purchaser shall execute or allow Global Crossing as its agent to execute such changes in presubscribed interexchange carrier authorization as is required to achieve such end.
3.2 SECURITY: LimeLight shall not initially be required to provide security to Global Crossing under a [ * ] day payment term (Section 3.7 hereunder).
3.3 SECURITY OPTIONS: LimeLight shall have a one time option, during the first [ * ] following the Start of Service Date of this Agreement, upon [ * ] days prior written notice to Global Crossing to modify its payment Due Date (Section 3.7 hereunder) to one of the following options:
OPTIONS DUE DATE REQUIRED SECURITY ------- -------- ----------------- Option 1 [ * ] Security deposit equaling [ * ] of LimeLight's prior month's Invoice total, or Option 2 [ * ] Security deposit equaling [ * ] of LimeLight's prior month's Invoice total |
Any written notice to Global Crossing from LimeLight requesting such modification shall be accepted at Global Crossing's sole discretion, and only with Global Crossing's written approval, which approval shall not be unreasonably withheld. Then, upon Global Crossing's receipt of the required security LimeLight's Due Date shall be adjusted appropriately via amendment format with LimeLight's new Due Date commencing in LimeLight's next full Billing Cycle following execution of the amendment by Global Crossing. Provided LimeLight maintains good payment history with Global Crossing, then, in the event LimeLight exceeds its Monthly Credit Limit, Global Crossing may, at any time, require additional security of its choice from LimeLight in an amount equal to [ * ] of LimeLight's usage above the Monthly Credit Limit as a condition to continuing to provide Service to LimeLight. Should LimeLight's payment history be less than desirable in Global Crossing's sole judgment, then Global Crossing may require additional security if LimeLight's charges for the Services are projected to exceed its Monthly Credit Limit (based on Global Crossing's measurement of LimeLight's daily usage run rate) or does exceed it Monthly Credit Limit, in an amount that equals LimeLight's prior month's Invoiced amount, as a condition to continuing to provide Service to LimeLight. Any additional security provided by LimeLight to Global Crossing in compliance with the above listed requirements shall be provided within [ * ] of LimeLight's receipt of Invoice (if the security is to be other than a letter of credit and within [ * ] if the security is to be a letter of credit).
Security shall be provided in the form of either: 1) a cash deposit, or 2) an irrevocable, stand-by letter of credit (LOC) from a financial institution and in a format acceptable to Global Crossing. Cash deposits shall bear interest at the rate for telephone security deposits set by the Public Utility/Public Service Commission in the state where LimeLight is headquartered.
3.4 SECURITY REVIEW: Global Crossing agrees, in good faith and at its sole discretion, to review LimeLight's financial statements and payment history following [ * ] Billing Cycle's to determine if LimeLight may require any adjustment to its current security status.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
3.5 PURCHASER CREDIT LIMIT: LimeLight's initial monthly credit limit hereunder shall be [ * ], (the "Monthly Credit Limit"). In the event LimeLight is delinquent in payment of an Invoice, or (ii) LimeLight's overall financial condition changes adversely during the term hereof (in Global Crossing's reasonable business judgment), and Global Crossing does not have security from LimeLight in an amount equal to LimeLight's highest Invoice over the prior six month period (or such lesser period if this Agreement has not been in effect for six months), Global Crossing may require security of its choice from LimeLight at [ * ] such amount. Any such security shall be provided by LimeLight to Global Crossing within [ * ] if the security is to be other than a letter of credit or within [ * ] if the security is to be a letter of credit from LimeLight receipt of Global Crossing's written request for additional security.
3.6 INVOICING: Global Crossing agrees to use commercially reasonable efforts to invoice LimeLight via facsimile on or about the fifth Business Day after the close of each Billing Cycle for the Services and for any other sums due Global Crossing ("INVOICE").
3.7 PAYMENT DUE DATE: Each Invoice shall be paid by LimeLight, via wire transfer in immediately available U.S. funds, so that the full payment is received by Global Crossing no later than [ * ] from the date of the Invoice (the "DUE DATE"). Time is of the essence with respect to payments under this Agreement. The Parties agree that (i) the Invoice date will be the same day the Invoice is faxed to LimeLight, and (ii) the Invoice will be faxed on a Business Day, followed by a confirmation copy sent by first class U.S. mail. Any Invoice not properly disputed under Section 4 hereof and not paid by the Due Date shall bear late payment fees at the rate of 1-1/2% per month (or such lower amount as maybe required by law) until paid. Payments shall be made as follows:
Wire Transfer Instructions (subject to change by Global Crossing)
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
3.8 PURCHASER'S CONTACT FACSIMILE NUMBER: The LimeLight facsimile number and contact for purposes of this Section 3. are 602-850-5001, Attention: Accounts Payable. LimeLight may change the facsimile number and contact upon written notice to Global Crossing.
3.9 MONTHLY RECURRING CHARGES: Monthly recurring charges ("MRC") shall be invoiced by Global Crossing on a monthly basis in advance and non-recurring charges shall be invoiced in arrears. If the Service Date for any circuit or port (or other Service) falls on other than the first day of any Billing Cycle, the initial charge to LimeLight shall consist of: (i) the pro-rata portion of the applicable monthly charge covering the period from the Service Date to the first day of the subsequent Billing Cycle, and (ii) the monthly charge for the following Billing Cycle.
3.10 CIRCUMSTANCES FOR RATE CHANGE AND PURCHASER OPTION: The pricing in this Agreement and any attached Exhibits applies only to the Services provided between or connected to the "on-net" nodes set out in the relevant Exhibit for Service. If Global Crossing's cost in providing the Services is increased due to circumstances beyond its reasonable control, or Global Crossing elects to pass through any governmental or regulatory assessments related to its provision of the Services, then Global Crossing may revise the rates and charges in this Agreement and any attached Exhibits upon [ * ] days written notice to LimeLight. LimeLight may cancel any Services subject to a rate/charge increase (other than increases resulting from governmental or regulatory assessments) upon written notice to Global Crossing given no later than [ * ] after LimeLight's receipt of the increase notice.
3.11 MINIMUM CIRCUIT AND PORT TERMS AND CHARGES: LimeLight shall be liable for the applicable minimum circuit and/or port terms and minimum circuit and/or port commitment charges set out in the Exhibits.
3.12 PURCHASER OBLIGATIONS REGARDING OTHER CHARGES AND COSTS: LimeLight agrees to pay Global Crossing for any costs incurred by Global Crossing, including without limitation, direct internal costs and any local service provider contract termination charges, with respect to ordered circuits, local loops or other Services canceled prior to installation or the completion of any term commitment made by LimeLight under this Agreement for such circuit, local loop or Services. Further, LimeLight may be liable for additional early termination or cancellation charges as set out in the Ancillary Fee Schedule. LimeLight agrees to pay to Global Crossing any and all local exchange carrier ("LEC") assessed charges (other than access charges otherwise included within the pricing in this Agreement), and all third party and governmental and regulatory charges or assessments levied upon Global Crossing as a result of Services provided to LimeLight, such as but not limited to:
A. Reasonable direct administrative costs incurred for implementation of ordering, network routing, billing, provisioning or other support services outside of Global Crossing's normal procedures and support services; and
B. Any applicable ancillary fees and charges set out in the attached Exhibit A, as the same may be modified from time to time by Global Crossing upon written notice to LimeLight.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
3.13 MINIMUM PERIODIC CHARGE: Beginning in LimeLight's first (1st.) Billing Cycle hereunder, LimeLight shall be liable for the following minimum charge(s) per Billing Cycle for all of the Services (the "MINIMUM CHARGE").
BILLING CYCLE MINIMUM CHARGE ------------- -------------- First Billing Cycle [ * ] Second Billing Cycle [ * ] Third Billing Cycle [ * ] Fourth Billing Cycle [ * ] Fifth Billing Cycle [ * ] Sixth Billing Cycle [ * ] Seventh Billing Cycle [ * ] Eighth Billing Cycle [ * ] Ninth Billing Cycle [ * ] Tenth Billing Cycle [ * ] Eleventh Billing Cycle [ * ] Twelfth Billing Cycle [ * ] Thirteenth Billing Cycle and each Billing Cycle thereafter [ * ] |
If LimeLight's net charges (after any available discounts hereunder) for the Services during a Billing Cycle are less than the Minimum Charge, LimeLight shall pay the shortfall. Governmental assessments and surcharges, non-recurring charges, local loop and third party and regulatory pass-through charges are not included when calculating the Minimum Charge.
3.14 EARLY TERMINATION CHARGES FOR SERVICE CANCELLATION: If a Service is canceled prior to expiration of its minimum term commitment, except if canceled by LimeLight under Sections 3.10 and/or 5.2 hereof, or this Agreement is terminated for Global Crossing's uncured breach as defined in 5.4, LimeLight shall be liable for, and shall pay to Global Crossing upon demand, an early termination fee in an amount equal to the applicable monthly per circuit and per port minimum charge times the number of months remaining on the unexpired term commitment (whether the initial or a renewal term) for the circuit / port.
3.15 PAYMENT NOT A PENALTY: LimeLight agrees that any minimum charge
shortfall and any early termination fees for which it may be liable
under this Agreement are based on agreed upon minimum commitments on
its part and corresponding rate concessions on Global Crossing's
part, and are not penalties or consequential or other damages under
Section 7. 3 hereof.
3.16 SINGLE RELATIONSHIP: LimeLight agrees that any material breach of any other agreement it may have with Global Crossing or a Global Crossing Affiliate shall be deemed a material breach of this Agreement. "AFFILIATE" means any entity directly or indirectly controlling, controlled by or under common control with Global Crossing.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
4. BILLING DISPUTES:
LimeLight shall have the affirmative obligation of providing written notice to Global Crossing of any dispute with an Invoice no later than [ * ] Days after the Invoice date. LimeLight must provide in its written notification sufficient detail regarding the dispute, including without limitation, Invoice number, Billing Cycle, dispute period, amount in dispute, product, reason for dispute, and supporting documentation and must be filed on the Global Crossing billing dispute form and pursuant to the Global Crossing billing dispute procedures in effect at the time the dispute is filed. LimeLight may withhold payment only on amounts so disputed within 30 Business Day after the Invoice date. Global Crossing will use reasonable efforts to resolve and communicate its resolution of any dispute filed in accordance with the requirements of this Section 4 within [ * ] Days of its receipt of the dispute notice. If the dispute is resolved in Global Crossing's favor, any amounts to be paid by LimeLight shall be immediately due and payable and shall be subject to the late payment charges under Section 3.5 hereof retroactive to the Due Date of the disputed Invoice. If LimeLight does not report a dispute with respect to an Invoice within the said [ * ] Day period, LimeLight is deemed to have waived its dispute rights for the Invoice and to have agreed to pay the same. Notwithstanding anything herein to the contrary, LimeLight shall not withhold any disputed amounts while its Global Crossing account is delinquent, and claims of fraudulent usage shall not constitute a valid basis for a dispute.
5. TERMINATION RIGHTS:
5.1 FAILING/FAILED BUSINESS: Either Party may terminate this Agreement upon the other Party's insolvency, inability to pay its debts as they come due, dissolution or cessation of business operations.
5.2 REVIEW ON CERTAIN REGULATORY CHANGES: If the FCC, a state PSC or a court of competent jurisdiction issues a rule, regulation, law or order ("Order") which has the effect of canceling, changing, or superseding the status of Purchaser, and which would require Purchaser to incur any Telecommunications Costs, then the Parties shall immediately confer to address the need to modify this Agreement to accommodate such Order, and in the event that the parties do not agree on the future status of the Services in light of the Order, then this Agreement shall be deemed modified in such a way as to place upon Purchaser all obligations with respect to PSC or other payments, obligations or filings. If Purchaser does not agree to undertake responsibility for such obligations, and such obligations do not materially and adversely impact the rates and charges provided to Purchaser under this Agreement, then Global Crossing may terminate this Agreement, including collection of the sums identified in Section 5.5. If Purchaser does not agree to undertake responsibility for such obligations, and such obligations do materially and adversely impact the rates and charges provided to Purchaser under this Agreement, then either Party may terminate this Agreement without liability upon thirty days written notice to the other Party.
5.3 NONPAYMENT: Global Crossing may, upon [ * ] written notice, immediately terminate this Agreement for (i) LimeLight's failure to pay any delinquent invoice, or (ii) to pay any security or additional security within the time-frame required under this Agreement.
5.4 UNCURED BREACH: In the event of a breach of any material term or condition of this Agreement by a Party (other than a failure to pay or provide security which is covered under Section 5.3 hereof), the other Party may terminate this Agreement upon [ * ] written notice, unless the breaching Party cures the breach during the [ * ] period. A breach that cannot be reasonably cured within a [ * ] period may be addressed by a written waiver of this paragraph signed by the Parties.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
5.5 EARLY TERMINATION CHARGE FOR AGREEMENT TERMINATION: If this Agreement is terminated prior to expiration of any Service's term commitment, including any circuit or port, except if terminated by LimeLight under Section 5.4 hereof for an uncured breach by Global Crossing, Section 5.2 hereof for change in regulatory status of Purchaser which materially and adversely impacts the rates and charges provided to Purchaser, then LimeLight shall pay to Global Crossing upon demand an early termination fee in an amount equal to the [ * ] of each existing Service's monthly minimum commitment, times the number of months remaining on each Service's minimum commitment period. The parties agree that such amount would be a reasonable approximation of the amount due to Global Crossing, and that such amount constitutes liquidated damages and not a penalty. If the Agreement is terminated prior to Purchaser meeting any purchase requirement of this Agreement, then LimeLight shall pay to Global Crossing upon demand an early termination fee in an amount equal to [ * ] that would have been paid to Global Crossing had the Agreement remained in effect through the end of the then-current Term.
6. TAXES AND ASSESSMENTS:
LimeLight is responsible for the collection and remittance of all governmental assessments, surcharges and fees pertaining to its resale of the Services (other than taxes on Global Crossing's net income) (collectively, "TAXES"). LimeLight shall provide Global Crossing with, and maintain, valid and properly executed certificate(s) of exemption for the Taxes, as applicable.
7. WARRANTIES AND LIMITATION OF LIABILITY: CREDITS FOR QUALIFYING OUTAGES:
7.1 WARRANTY LIMITATION: The Services that are dedicated circuits shall
be provided by Global Crossing in accordance with the applicable
technical standards established for dedicated circuit capacity by
the telecommunications industry for a digital fiber optic network.
GLOBAL CROSSING MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO TRANSMISSION, EQUIPMENT OR SERVICE PROVIDED HEREUNDER,
AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE OR FUNCTION. PURCHASER'S SOLE REMEDY IN
THE EVENT OF ANY BREACH OF ANY PROMISE, REPRESENTATION OR WARRANTY
UNDER THIS AGREEMENT SHALL BE THE [ * ] SET OUT IN THIS AGREEMENT OR
IN ANY GOVERNING TARIFF THAT IS APPLICABLE TO THE SERVICE, WHICH
SHALL NOT IN ANY CASE EXCEED THE AMOUNTS [ * ] IN WHICH PURCHASER
MAY MAKE A CLAIM.
7.2 NO INCIDENTAL OR CONSEQUENTIAL DAMAGES: In no event shall either Party be liable to the other Party for incidental and consequential damages, loss of goodwill, anticipated profit, or other claims for indirect damages in any manner related to this Agreement or the Services.
8. INDEMNIFICATION: Each Party shall defend and indemnify the other Party and its directors, officers, employees, representatives and agents from any and all claims, taxes, penalties, interest, expenses, damages, lawsuits or other liabilities (including without limitation, reasonable attorney fees and court costs) relating to or arising out of (i) acts or omissions in the operation of its business, and (ii) its breach of this Agreement; provided, however, Global Crossing shall not be liable and shall not be obligated to indemnify LimeLight, and LimeLight shall defend and indemnify Global Crossing hereunder, for any claims by any third party, including LimeLight's customers, with respect to services provided by LimeLight which may incorporate any of the Services.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Purchaser unconditionally agrees that it will indemnify and hold harmless Global Crossing with respect to any and all Telecommunications Costs that Global Crossing may be required to incur, pay, credit, return or setoff as a result of any actions or inactions of Purchaser, including Purchaser's failure to establish a status that reflects its position under law. Purchaser also agrees unconditionally that it will indemnify and hold harmless Global Crossing with respect to any and all content with which it may become involved in the provision of its services, including any content of third parties, to the extent that its offerings may have statutory or other obligations that apply to Purchaser's involvement in any way with content.
9. RELATIONSHIP AND REPRESENTATION: The Parties acknowledge and agree that the relationship between them is solely that of independent contractors. Neither Party, nor their respective employees, agents or representatives, has any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
10. FORCE MAJEURE: Other than with respect to failure to make payments due hereunder, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties (including fiber cuts caused by third parties except as it pertains to any specified Service Level Agreement(s) within this Agreement including any Exhibits or Attachments), or any other cause beyond its reasonable control.
11. WAIVERS: No waiver of any term or condition of this Agreement shall be enforceable unless it is in writing and signed by the Party against whom it is sought to be charged. No failure or delay by either Party in exercising any right, power or remedy will operate as a waiver of any such right, power or remedy, unless otherwise provided herein. The waiver by either Party of any of the covenants, conditions or agreements to be performed by the other or any breach thereof shall not operate or be construed as a waiver of any subsequent breach of any such covenant, condition or agreement.
12. ASSIGNMENT: Neither Party may assign or transfer its rights or obligations under this Agreement without the other Party's written consent, which consent may not be unreasonably delayed withheld. Notwithstanding the foregoing, Global Crossing may assign this Agreement to its affiliates or successor-in-interest without LimeLight's consent and LimeLight may, with written notice, assign this Agreement to its affiliates or successor-in-interest without Global Crossing's consent (provided the assignee's financial condition and credit rating is comparable to or better than that of LimeLight's). Any assignment or transfer without the required consent is void.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
13. CONFIDENTIALITY; USE OF INTELLECTUAL PROPERTY: Each Party agrees that all information furnished to it by the other Party, or to which it has access under this Agreement, shall be deemed the confidential and proprietary information or trade secrets (collectively referred to as "PROPRIETARY INFORMATION") of the Disclosing Party and shall remain the sole and exclusive property of the Disclosing Party (the Party furnishing the Proprietary Information referred to as the "DISCLOSING PARTY" and the other Party referred to as the "RECEIVING PARTY"). Each Party shall treat the Proprietary Information and the contents of this Agreement in a confidential manner and, except to the extent necessary in connection with the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the same to anyone other than its employees on a need to know basis and who agree to be bound by the terms of this Section, without the written consent of the Disclosing Party. This provision does not apply to information that becomes public through no fault of the Receiving Party, is disclosed by a third party with lawful rights to disclose the information, or is disclosed pursuant to lawful requirements of a governmental agency or court with jurisdiction, is disclosed to enforce the Agreement, or is disclosed to representatives or agents of the Receiving Party who agree to be bound by this provision. Neither Party may use the name, logo, trade name, service marks, trade marks, or printed materials of the other Party, in any promotional or advertising material, statement, document, press release or broadcast without the prior written consent of the other Party, which consent may be granted or withheld at the other Party's sole discretion.
14. INTEGRATION: This Agreement and all Exhibits and other attachments incorporated herein, represent the entire agreement between the Parties with respect to the subject matter hereof and supersede and merge all prior agreements, promises, understandings, statements, representations, warranties, indemnities and inducements to the making of this Agreement relied upon by either Party, whether written or oral.
15. CONSTRUCTION: The language used in this Agreement is deemed the language chosen by the Parties to express their mutual intent. No rule of strict construction shall be applied against either Party.
16. GOVERNING LAW: Global Crossing regional service and operations centers support customer accounts in New York, California and Michigan. This Agreement will be construed and enforced in accordance with the law of the state where LimeLight's account is supported, as designated by Global Crossing in this Agreement or as designated in Exhibits or amendments to this Agreement, without regard to that state's choice of law principles. The Parties agree that any action related to this Agreement shall be brought and maintained only: (i) in the Superior court of the State of California for the County of Santa Barbara, if the designated customer support center is located in California; (ii) in a Federal or State court of competent jurisdiction located in Monroe County, New York, if the designated customer support center is located in New York; or (iii) in the Federal District Court for the Eastern District of Michigan or a State court of competent jurisdiction located in Oakland County, Michigan, if the designated customer support center is located in Michigan. The Parties each consent to the jurisdiction and venue of such courts and waive any right to object to such jurisdiction and venue.
17. NOTICES: All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including Invoices) shall be in writing and shall be deemed given: (i) when delivered in person, (ii) 24 hours after deposit with an overnight delivery service for next day delivery, (ii) the same day when sent by facsimile transmission to the facsimile number identified below, during normal business hours, receipt confirmed by sender's equipment, or (iii) 72 hours after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth below:
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
If to Global Crossing: Global Crossing Bandwidth, Inc
180 South Clinton Avenue Rochester, New York 14646 Attn: Vice President Carrier Services Facsimile #: 716-232-9168 with a copy to: Global Crossing Bandwidth, Inc. 90 Castilian Drive, Suite 200 Goleta, CA 93117 Attn: Peggy Palak, Manager, National Contract Admin. Facsimile #: (800) 689-2395 If to LimeLight: LimeLight Networks, LLC 8936 N. Central Avenue Phoenix, AZ 85020 Attn: Gary Baldus, Vice President of Corporate Development Facsimile #: (602) 850-5001 |
18. COMPLIANCE WITH LAWS; PROVISION OF REASONABLE ASSURANCES OF COMPLIANCE:
During the term of this Agreement, the Parties shall comply with all
local, state and federal laws and regulations applicable to this Agreement
and to their respective businesses. Further, each Party shall procure and
maintain any certifications, permits, authorizations, licenses or similar
documentation as may be required by the FCC, a state Public Utility or
Public Service Commission, or any other governmental body or agency having
jurisdiction over its business ("AUTHORIZATIONS"). Upon the request of a
Party that believes an Authorization is required to do business in a
jurisdiction, the other Party shall provide justification reasonably
acceptable to the inquiring Party that explains why it does not have an
Authorization and the basis for any conclusion that no Authorization is
needed. Global Crossing may request reasonable assurances of compliance
with law by Purchaser and may take such action as is permitted by law, if
reasonable assurances are not forthcoming and its financial interests may
be directly and adversely affected.
19. THIRD PARTIES: The provisions of this Agreement and the rights and obligations created hereunder are intended for the sole benefit of Global Crossing and Purchaser, and do not create any right, claim or benefit on the part of any person not a Party to this Agreement, including End-Users or customers of Purchaser.
20. SURVIVAL OF PROVISIONS: Any obligations of the Parties relating to monies owed, as well as those provisions relating to confidentiality, limitations on liability and indemnification, shall survive termination of this Agreement.
21. UNENFORCEABLE PROVISIONS: The illegality or unenforceability of any provision of this Agreement does not affect the legality or enforceability of any other provision or portion. If any provision or portion of this Agreement is deemed illegal or unenforceable for any reason, there shall be deemed to be made such minimum change in such provision or portion as is necessary to make it valid and enforceable as so modified.
22. CUMULATIVE RIGHTS AND REMEDIES: Except as may otherwise be provided herein, the assertion by a Party of any right or the obtaining of any remedy hereunder shall not preclude such Party from asserting or obtaining any other right or remedy, at law or in equity, hereunder.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
23. AMENDMENTS: This Agreement is voidable by Global Crossing if the text is modified by LimeLight without the written or initialed consent of a Global Crossing Vice President. Except as may otherwise be provided herein, any amendments or modifications to this Agreement must be in writing and signed by a Global Crossing Vice President (or higher level officer) and an authorized officer of LimeLight.
24. NON-SOLICITATION: LimeLight agrees that [ * ], and for a period of [ * ] following expiration or termination of this Agreement, neither it nor its representatives will directly or indirectly solicit Global Crossing employees to leave their employment with Global Crossing.
25. AUTHORITY: Each individual executing below on behalf of a Party hereby represents and warrants to the other Party that such individual is duly authorized to so execute, and to deliver, this Agreement. By its signature below, each Party acknowledges and agrees that sufficient allowance has been made for review of this Agreement by respective counsel and that each Party has been advised by its legal counsel as to its legal rights, duties and obligations under this Agreement.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, LLC By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ------------------------------------ ----------------------------------- Barrett O. MacCheyne, Senior Vice William H. Rinehart, President and President Member North American Carrier Service Date: Date: ---------------------------------- --------------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit A
SCHEDULE OF ANCILLARY FEES
Local Loop Charges:
All local loop monthly recurring and non- recurring (installation) charges shall be on a case by case basis, based upon vendor, mileage, location and circuit speed and term.
Local Loop Cancellation Charges:
Prior To Installation = Installation charges plus any other charges incurred in accordance with Section 3.10 of the Agreement.
Post Installation = To the number of months remaining in the term of the Local Loop times the Local Loop Monthly Recurring Charge.
Upgrades = To a larger size Local Loop between the same LimeLight locations shall not be subject to Cancellation Charges. The new Local Loop will be subject to all standard terms specified in this Agreement (including without limitation a minimum term commitment). All applicable third party local access charges incurred from the upgrade will be passed through at cost to LimeLight.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B
COLOCATION SERVICES
All Colocation facilities are pending Global Crossing's Engineering approval based upon the information provided to Global Crossing by LimeLight in the Colocation Service Inquiry Form. Any approved facilities shall be presented to LimeLight as an amendment pursuant to Section 1.A. below.
1. LICENSE:
A. Global Crossing hereby grants LimeLight a license to occupy certain designated space (the "Space") within a designated Global Crossing premise (the "Facility"). Separate "Colocation Schedules" may be attached hereto from time to time for each separate site where Colocation will be established. All Colocation Schedules, upon their execution by both Parties, shall be incorporated herein and shall become a part hereof. By executing a Colocation Schedule, LimeLight accepts the Space on an "AS-IS, WHERE IS" basis. LimeLight may only use the Space to install, maintain, monitor, operate, replace, repair and remove certain of its telecommunications equipment (the "Equipment") as specified on the Colocation Schedule.
B. LimeLight acknowledges that it has been granted only a license to occupy the Space and that it has no real property interests therein. LimeLight shall not utilize the Facility for any unlawful purposes, assign, mortgage, sublease, encumber or otherwise transfer any Space or license granted hereunder. Any attempt by LimeLight to encumber the Space or permit the use or occupancy by anyone other than LimeLight shall be void.
C. LimeLight shall utilize the Space and the Equipment only in conjunction with services provided by Global Crossing. Use of the Space or Equipment with third party services or for interconnection to third parties is prohibited. Any party seeking to install any such facility or connection without the express written authorization of Global Crossing shall be denied entry to the Space.
2. TERM AND TERMINATION:
A. The term of a license shall be as set forth in the applicable Colocation Schedule and shall commence on the first day the Space is made available by Global Crossing (the "Commencement Date"), but shall be immediately terminable by Global Crossing upon the termination, expiration or cancellation for any reason of (i) any underlying agreement between Global Crossing and any other party involving Global Crossing's continued use of the Facility, or (ii) this Agreement. Following the expiration of the license term as set forth in the Colocation Schedule for a Space, LimeLight's license shall automatically renew on a [ * ] basis in accordance with the same terms and conditions specified herein, unless terminated by either LimeLight or Global Crossing upon [ * ] days prior written notice.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B
B. Global Crossing shall not be liable to LimeLight in any way as a result of Global Crossing's failure (for any reason) to tender possession of the Space to LimeLight on or before the commencement date listed in the Colocation Schedule. Any delay in tendering possession of the Space to LimeLight for any reason other than the acts or omissions of LimeLight shall relieve LimeLight of its obligation to pay the monthly recurring charges (MRC) set forth in the Colocation Schedule until possession of the Space is delivered to LimeLight. Provided that if Global Crossing fails to make any Space available within ninety [ * ] after the Scheduled Commencement Date, LimeLight's sole remedy for later delivery shall be to cancel the service order for the Space prior to actual delivery of the Space upon ten (10) days prior written notice to Global Crossing.
C. If a Colocation is canceled after installation but prior to expiration of its minimum term commitment, except if canceled by LimeLight (i) under paragraph 2(b) above (ii) for Global Crossing's uncured breach, or (iii) Global Crossing's inability to provide another Service required for LimeLight to make use of this Colocation (e.g. loss of circuit capacity by Global Crossing at this facility), LimeLight shall be liable for, and shall pay to Global Crossing, an early termination fee in an amount equal to [ * ] for the Colocation.
3. CHARGES, FEES AND TAXES:
A. MRCs shall be payable in advance and without notice or demand and without abatement, deduction, counterclaim or setoff commencing on the first day the Space is made available by Global Crossing and on the first day of each calendar month thereafter. Installation and non-recurring charges are due when invoiced. MRCs shall be prorated for partial months. The MRCs may be increased from time to time during the term of the license by reason of (i) any increases payable by Global Crossing to its landlord(s) under the lease for the Facility or Rights of Way in which the Space is located; (ii) any increases incurred by Global Crossing in any of the services to the Facility procured by Global Crossing directly from the provider thereof; and (iii) any increases in real property taxes assessed against the Facility which Global Crossing is liable to pay. LimeLight's share of any such increases shall be pro-rated based on the number of innerduct linear feet in the Space as a percentage of the total number of innerduct linear feet in the Facility.
B. In addition, LimeLight shall be fully responsible for the prompt payment of all federal, state or local taxes, however denominated, based on or calculated with respect to the amounts payable by LimeLight (including but not limited to sales/use, rental and gross receipts taxes or surcharges) and all taxes (including, but not limited to franchise, income and miscellaneous taxes) which are the liabilities of LimeLight under (i) appropriate standard industry practices (including telecommunications, fiber optic and rental industries), (ii) applicable law and (iii) as otherwise agreed at any time between LimeLight and Global Crossing; provided, however, the taxes on Global Crossing's income and property shall be the sole responsibility of Global Crossing.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B
4. MAKE-READY:
If applicable, LimeLight shall pay Global Crossing the amount set forth in each Colocation Schedule for the cost of engineering or improvements to the Space required to be made by Global Crossing in order to accommodate LimeLight's Colocation into the Space (the "Make-Ready Fee"). The Make-Ready Fee shall be payable to Global Crossing upon LimeLight's execution of the Colocation Schedule for the Space. Title to such improvements shall remain vested in Global Crossing.
5. MAINTENANCE:
A. Global Crossing shall be responsible for maintenance of the Facility and the Space. LimeLight shall not make any alterations, changes, additions or improvements to either the Facility or the Space without Global Crossing's prior written consent. LimeLight agrees to maintain and repair all of its Equipment placed in the Space at LimeLight's expense and shall be responsible for all costs associated with the configuration, installation, interconnection and operation of the Equipment, including without limitation, transportation related costs and any electrical or other work which must be completed in order to interconnect the Equipment.
B. LimeLight's Maintenance responsibilities include, but are not limited to, the following:
(i) LimeLight shall arrange for the transit delivery of all Equipment to the Space at its sole cost and expense.
(ii) LimeLight shall provide Global Crossing with reasonable prior notice (not less than two (2) business days) of the actual delivery date of the Equipment.
(iii) LimeLight shall not cause harm to the Space or the Facility of Global Crossing, or third parties.
(iv) LimeLight shall not interfere in any way with Global Crossing's use or operation of the Facility or with the use or operation of any third party facilities.
(v) LimeLight shall not physically conflict or electrically interfere with the facilities of Global Crossing or third parties.
(vi) LimeLight shall be in full compliance with telecommunication industry standards, NEC and OSHA requirements, and in accordance with Global Crossing's requirements and specifications.
(vii) All Equipment must be mounted on racks, and using appropriate brackets, except where otherwise expressly permitted in writing by Global Crossing. LimeLight is solely responsible for assuring that the Equipment is mounted in an efficient and appropriate manner.
(viii) All cabling regardless of location, shall be tied and organized, run to the side of the rack, and labeled. Connectors must be secured in the interface socket.
(ix) LimeLight must provide for remote access (via modem or other means) where available, in order to administer, configure, monitor and operate the Equipment.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B
(x) LimeLight shall, at all times, comply with Global Crossing's rules and regulations regarding access to its facilities, including without limitation, adequate notice before entry (not less than [ * ] except in emergencies), appropriate dress and professional conduct. Global Crossing may remove any personnel of LimeLight not in compliance with its rules and regulations and may prohibit access by any person at its discretion.
(xi) LimeLight shall utilize only Global Crossing's facilities and Global Crossing's network for the provision of its services, and facilities of third parties or connections to third party facilities are prohibited. Any party seeking to install any such facility or connection without the express written authorization of Global Crossing shall be denied entry to the Space. LimeLight, however, may employ non-Global Crossing services only when such services are not offered by Global Crossing.
6. APPROVALS:
A. LimeLight shall submit to Global Crossing all building construction and electrical requirements and architectural and engineering drawings indicating the proposed installation for approval. LimeLight may not perform any construction or install any Equipment without written approval from Global Crossing. Global Crossing reserves the right to accept or reject LimeLight's design at its sole discretion. All costs of design work shall be LimeLight's responsibility. LimeLight shall also be required to complete the Colocation Request For Information form.
B. Global Crossing shall inspect the completed installation and must approve the same in writing before LimeLight is allowed to utilize the Equipment for any reason. Any installations that do not comply with the approved drawings will be subject to rejection by Global Crossing. Global Crossing also reserves the right to order reasonable modifications to any installations.
C. LimeLight is solely responsible for obtaining any and all necessary building permits or other authorizations required for Colocation of its Equipment.
7. INSURANCE AND INDEMNITY:
A. While a license is in effect, LimeLight shall maintain in force and effect policies of insurance as follows:
(i) Comprehensive General Liability Insurance, including contractual liability and broad form property damage, covering personal injury or death and property damage with a combined single limit of at least [ * ]; and
(ii) Workers Compensation Insurance with limits required by the laws of the state in which the Space is located.
The liability insurance shall name Global Crossing as an additional insured and shall be primary insurance and Global Crossing's insurance shall not be called upon for contribution towards any such loss. LimeLight's insurer shall provide Global Crossing with a least ten (10) days prior written notice of cancellation or change in coverage. All insurance required of LimeLight shall be evidenced by certificates of insurance provided to Global Crossing.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B
B. LimeLight shall be liable for and shall indemnify, defend and hold Global Crossing harmless from and against any claims, demands, actions, damages, liability, judgments, expenses and costs (including reasonable attorneys fees) arising from (i) LimeLight's use of the Space, or (ii) any damage or destruction thereto or to the Facility or any property therein caused by or due to (x) the acts or failures to act, negligent, willful or otherwise, of LimeLight, its employees, agents or representatives, or (y) any malfunction of LimeLight's Equipment located in the Space.
C. Global Crossing does not warrant that the integrity of the Space or the Facility will be free from any disruptions and Global Crossing shall not be liable therefore. Global Crossing's entire liability for any such disruptions, or any other matter giving rise to a claim with respect to the Space or Facility, shall not exceed in any case the MRCs paid by LimeLight for the month in which such disruption or other matter occurred.
8. DAMAGE TO FACILITY:
If the Facility in which the Space is located is damaged by fire or other casualty, Global Crossing shall give immediate notice to LimeLight of such damage. If Global Crossing's landlord or Global Crossing exercises an option to terminate the lease therefore due to such damage or Global Crossing's landlord or Global Crossing decides not to rebuild the Facility in which the Space is located, this Agreement shall terminate as of the date of such exercise or decision as to the affected Space and the MRC paid by LimeLight shall be modified accordingly. If neither the landlord of the affected Facility nor Global Crossing exercises the right to terminate or not to rebuild, the landlord or Global Crossing, as applicable, shall repair the Facility to substantially the same condition as prior to the damage, completing the same with reasonable speed. In the event that such repairs are not completed within a reasonable time, LimeLight shall thereupon have the option to terminate this Agreement with respect to the affected Space, such option shall be the sole remedy available to LimeLight against Global Crossing hereunder relating to such failure. If the Space or any portion thereof shall be rendered unusable by LimeLight by reason of such damage, the MRC for such Space shall proportionately abate for the period from the date of such damage to the date when such damage shall have been repaired for the portion of the Space rendered unusable or until the decision to not repair such Space is communicated to LimeLight by Global Crossing.
9. RATES AND CHARGES: LimeLight shall be charged for Colocation Space at the rates set out below.
MONTHLY RECURRING CHARGES
MRC per Rack or Cabinet [ * ] Additional Power [ * ] |
NON RECURRING CHARGES:
NRC per Rack/Cabinet per site [ * ] Colocation Site [ * ] Make Ready Fee [ * ] |
Dispatch Fees: [ * ] for unmanned sites during business hours (Monday through Friday 8:00 am to 6:00 p.m.) and [ * ] for unmanned sites during non-business hours and nationally recognized holidays.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit B(a)
COLOCATION SCHEDULE #1
EQUIPMENT, SPACE AND POWER REQUIREMENTS
All terms and conditions as presented under the Agreement for the Colocation Service are applicable unless otherwise stated below and become incorporated herein.
Customer Name: LimeLight Networks, LLC Global Crossing Switch Site Location: 801 S. 16th. Street, 1st. Floor, Phoenix, AZ Minimum Term : [ * ] Commencement Date: October 15, 2001 |
Monthly Recurring Charge: [ * ]
Non-Recurring Charges: [ * ]
If applicable, Make Ready Fees will be applied to LimeLight's Invoice.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
IP TRANSIT SERVICE
IP TRANSIT SERVICE permits direct access to the Internet via Global Crossing's nationwide IP network. Connectivity is between LimeLight's router and/or switch and the Global Crossing router located in a Global Crossing IP POP. This Exhibit describes the specific terms, conditions and rates applicable to the Global Crossing IP Transit Service ordered as part of the Agreement. In the event of any conflict between this Exhibit and the Agreement, the terms of this Exhibit shall control.
1. TERM.
1.1 Each circuit shall have a specific in-service term commitment of one, two or three years, which shall be separate and distinct from the term of the Agreement. Upon expiration, non-renewal or early termination of the Agreement, except if the Agreement is terminated by a Party for the other Party's uncured breach, then, notwithstanding the term stated in the Agreement, the Agreement will continue in effect with respect to the IP Transit Service as long as a circuit installed under this Exhibit remains in operation.
1.2 Unless one Party provides the other with at least [ * ] prior written notice of its intent not to renew a circuit after the circuit's minimum commitment period expires, then, unless the Parties agree otherwise in writing, a circuit shall automatically renew for an additional [ * ] period at [ * ] at the time of the automatic renewal. The foregoing notice and renewal process shall also apply for each additional renewal period.
2. BILLING AND PAYMENT; MINIMUM COMMITMENTS.
2.1 LimeLight shall pay Global Crossing for the IP Transit Service at the rates and charges set out in the rate schedule attached to this Exhibit. Billing for a circuit shall commence upon the earlier to occur of (i) 30 days following the date Global Crossing notifies LimeLight, in writing or via electronic transmission, that the ordered circuit capacity is available from Global Crossing (regardless of whether or not LimeLight's Interconnection Facilities [defined in paragraph 5.2 below] are installed and operational), or (ii) the date the ordered circuit capacity is first utilized by LimeLight (the "SERVICE DATE").
2.2 Monthly recurring charges ("MRC") shall be invoiced by Global Crossing on a monthly basis in advance and non-recurring charges shall be invoiced in arrears. If the Service Date for any circuit falls on a day other than the first day of any Billing Cycle, the initial charge to LimeLight shall consist of: (i) the pro-rata portion of the applicable monthly charge covering the period from the Service Date to the first day of the subsequent Billing Cycle, and (ii) the monthly charge for the following Billing Cycle. Payment terms are set out in the Agreement.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
2.3 The pricing in this Exhibit is limited to the IP Transit
Service provided from the "on-net" nodes set out in the Global
Crossing IP POP List and SONET POP list, which will be
provided upon request, and which lists may, at Global
Crossing's discretion, be changed from time to time. Global
Crossing reserves the right, upon prior written approval by
LimeLight not to be unreasonably withheld, to charge LimeLight
for backhaul facilities if "off-net" routing or special Layer
2 "on-net" routing is agreed to by Global Crossing. If Global
Crossing's cost in providing the IP Transit Service is
increased due to circumstances beyond its reasonable control,
then Global Crossing may revise the rates and charges in this
Exhibit upon 30 days written notice to LimeLight. LimeLight
may cancel, without further liability (other than to pay for
the circuit through the date of cancellation), any circuits
subject to a rate/charge increase (other than increases
resulting from governmental or regulatory assessments) upon
written notice to Global Crossing given no later than 30 days
after LimeLight's receipt of the increase notice.
2.4 If a circuit is canceled after installation but prior to expiration of its minimum term commitment, except if canceled by LimeLight (i) under paragraph 2.3 above (ii) for Global Crossing's uncured breach, (iii) because it is replaced with a circuit of equal or greater charge, or (iv) due to Global Crossing's physical inability, excluding business terms, to provide access to the Global Crossing router from Global Crossing's Collocation space. (LimeLight shall be required to check for availability of such Collocation space at the time the circuit was ordered and if Collocation space wasn't available at such time and LimeLight nonetheless proceeded with the order, then LimeLight may not utilize this Section 2.4,(iv)), LimeLight shall be liable for, and shall pay to Global Crossing, an early termination fee in an amount equal to the [ * ] times the number of months remaining on the unexpired term commitment (whether the initial or a renewal term) for the circuit.
2.5 In addition to forecasts for other Services that may be required under the Agreement or any attachment thereto, LimeLight must supply Global Crossing with [ * ], for IP Transit Service. In the event that LimeLight fails to provide a [ * ] rolling forecast within [ * ] days of the time set forth herein, Global Crossing shall notify LimeLight of the delinquency of the forecast. Upon Global Crossing's notification LimeLight shall be required to provide the forecast within [ * ] days. The forecast must include information regarding anticipated capacity requirements by [ * ]. The forecasts must be provided on the first business day of each [ * ], and shall cover [ * ] beginning with the [ * ] of the [ * ] of such [ * ] (e.g. on or about [ * ], LimeLight shall provide Global Crossing with a forecast covering [ * ]. In the event LimeLight [ * ] in accordance with this provision then LimeLight [ * ].
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
3. SERVICE LEVEL AGREEMENT AND CREDITS.
3.1 The following Service Level Agreement (SLA) applies to all IP Transit circuits with an original term commitment(s) of at least [ * ]. The SLA covers (i) the router port in the Global Crossing IP-POP (and, if applicable, the SONET backhaul circuit), which connects directly to LimeLight's local access circuit or Interconnection Facilities, (ii) the Global Crossing network backbone interconnecting the Global Crossing IP-POPs, and (iii) supporting systems within Global Crossing's control, which provide domain name routing and other functions which enable LimeLight to logically interact with the network. This SLA specifically excludes (a) the local circuit between LimeLight's premises and the Global Crossing SONET POP or IP-POP, (b) customer premise equipment either owned by LimeLight or provided through Global Crossing, (c) connections between Global Crossing's network and other Internet service providers, (d) other Internet service provider networks, (e) force majeure events, (f) notified and scheduled maintenance or outages or emergency interruptions, (g) credits owed in the events LimeLight fails to submit forecasts in accordance with section 2.5, and (h) any act or omission on the part of LimeLight, third party contractors or vendors or any other entity over which LimeLight exercises control or has the right to exercise control.
A. Network Availability of [ * ] measured on a monthly basis for Global Crossing's IP access ports and backbone network in the contiguous United States.
B. Average monthly round-trip transmission latency of no more than [ * ] milliseconds within Global Crossing's backbone in the contiguous United States.
C. Less than [ * ] packet loss on the Global Crossing IP backbone in the contiguous United States.
3.2 The entire liability of Global Crossing for all claims of whatever nature arising out its failure to meet the SLA or otherwise related to its provision of the IP Transit Service (including its negligence), shall be a credit as follows:
A. For service interruptions or network unavailability (the inability of Global Crossing's network to pass traffic between its IP-POPs) greater than [ * ] minutes (hereafter an "OUTAGE"), LimeLight will be eligible to receive a credit computed in accordance with the following formula (the "OUTAGE CREDIT"):
OUTAGE CREDIT = [ * ] X TOTAL MRC FOR AFFECTED CIRCUIT [ * ] |
The Outage Credit shall apply to the charges for any
circuit affected by an Outage; provided, however,
that if any portion of the affected circuit remains
useable by LimeLight, the Outage Credit shall not
apply to that pro-rata portion of the mileage. The
duration of each Outage shall be calculated in hours
and shall include fractional portions thereof. An
Outage shall be deemed to have commenced upon
verifiable notification thereof by LimeLight to
Global Crossing, or, when indicated by network
control information actually known to Global Crossing
network personnel, whichever is earlier. Each Outage
shall be deemed to terminate upon restoration of the
affected circuit as evidenced by appropriate network
tests by Global Crossing. Global Crossing shall give
[ * ] hour notice to LimeLight of any scheduled
outage and a scheduled outage shall under no
circumstance be viewed as an Outage hereunder. In
addition, Global Crossing will provide as much notice
as possible for unscheduled emergency outages.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
B. In any given Billing Cycle if the average round-trip latency on the Global Crossing North American IP backbone exceeds [ * ] milliseconds Global Crossing agrees to provide LimeLight with a credit of [ * ] of LimeLight's total monthly recurring charge's for all IP transit circuits in North America.
C. In any given Billing Cycle if the average packet loss on the Global Crossing North American IP backbone exceeds [ * ] Global Crossing agrees to provide LimeLight with a credit of [ * ] of LimeLight's total monthly recurring charges for all IP transit circuits in North America.
3.3 Outage Credits shall not be granted if the malfunction of any end-to-end circuit is due to an Outage or other defect occurring in LimeLight's Interconnection Facilities.
3.4 All Outage Credits shall be credited on the next monthly invoice for the affected circuit after receipt of LimeLight's written request for credit, provided that LimeLight timely reported the IP Transit Service failure. Written request must be received within [ * ] days of the SLA failure event. The total of all Outage Credits applicable to or accruing in any given month shall not exceed the 100% of the amount payable by LimeLight to Global Crossing for that same month for such circuit.
3.5 The Outage Credits described in this Section 3 shall be the sole and exclusive remedy of LimeLight in the event of any failure of Global Crossing to comply with the SLA, and under no circumstance shall such a failure be deemed a breach by Global Crossing under the Agreement.
In the event LimeLight experiences Chronic Outages with
respect to any circuit, LimeLight shall be entitled to
terminate the affected circuit without further obligation by
providing Global Crossing with written notice following such
Chronic Outages ("Chronic Termination"). For purposes of this
Agreement, a circuit suffers Chronic Outages if such circuit,
measured over a given Billing Cycle, (i) experiences more than
[ * ] related outages which total more than [ * ] cumulative
hours, (ii) if the average round-trip latency on the Global
Crossing North American IP backbone exceeds [ * ]
milliseconds, or (iii) if the average packet loss on the
Global Crossing North American IP backbone exceeds [ * ]. (Not
including Force Majeure or scheduled maintenance.)
4. RATES AND CHARGES.
The applicable Monthly Recurring Charges ("MRC's"), Non-Recurring Charges ("NRC's") and other charges for IP Transit Service are set forth on subdivision (a) of this Exhibit. Early termination of any circuit is subject to an early termination fee as described in Section 2.4 hereof. All charges are invoiced in U.S. dollars and paid in U.S. dollars.
Upon signature of a Service Request (SR) by LimeLight, the Parties
agree that the SR constitutes a firm circuit order. LimeLight shall
receive the Standard Circuit pricing, Exhibit C(a), Section 1.A. or
Section 1.B., unless the SR lists the circuit order as a Content
Circuit. LimeLight agrees in order to receive Content Circuit pricing,
Exhibit C(a), Section 1.C., a circuit must have traffic ratios greater
than or equal to [ * ]. For the purposes of this Agreement a Standard
Circuit is defined as any IP Transit circuit with no [ * ] while a
Content Circuit is defined as any IP Transit circuit with [ * ].
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
A cancellation fee, as listed in subdivision (a) of this Exhibit, shall apply if LimeLight cancels such ordered circuit(s) prior to the Service Date. An order cannot be cancelled on the Service Date. All cancellation requests must be in writing. An order is considered cancelled when Global Crossing receives the written notice. The written notification cannot be retroactive.
4. CIRCUIT AVAILABILITY DATE; INTERCONNECTION FACILITIES.
5.1 Upon receipt of a complete and accurate service order for a circuit, Global Crossing shall notify LimeLight of its target date for the delivery of each circuit (the "ESTIMATED AVAILABILITY DATE"). Global Crossing shall use reasonable efforts to install each circuit on or before the Estimated Availability Date, but the inability of Global Crossing to deliver a circuit by such date, shall not be a breach by Global Crossing under the Agreement. If Global Crossing fails to make any circuit available within [ * ] after acceptance by Global Crossing of the service order with respect to such circuit, LimeLight's sole remedy shall be to cancel the service order which pertains to such circuit upon [ * ] prior written notice to Global Crossing.
5.2 Within the Global Crossing IP node where LimeLight orders circuits, Global Crossing shall provide appropriate equipment necessary to connect the circuits to LimeLight's Interconnection Facilities. If LimeLight desires to install its own equipment in one or more IP or SONET POP, and Global Crossing, in its sole discretion, agrees to such installation, the Parties shall execute a ~collocation agreement acceptable to both Parties. LimeLight agrees that LimeLight's Interconnection Facilities shall connect to the circuits provided by Global Crossing hereunder at the network interface points located in the IP and SONET POPs. As used herein, the term "INTERCONNECTION FACILITIES" shall mean transmission capacity provided by LimeLight or its third party supplier to extend the circuits provided by Global Crossing from a SONET or IP POP to any other location.
A. GLOBAL CROSSING ACCEPTABLE USE AND SECURITY POLICIES.
6.1 LimeLight and its customers shall comply with Global Crossing's Acceptable Use and Security Policies (collectively, the "Policy"), which Policy Global Crossing may modify at any time. The current, complete Policy is available for review at HTTP://WWW.GLOBALCROSSING.COM/AUP (Global Crossing may change the Policy and website address via electronic notice). Without limiting the Policy, generally, neither LimeLight nor its customers may use Global Crossing's network, machines, or services in any manner which:
(i) violates any applicable law, regulation, treaty, or tariff;
(ii) violates the acceptable use policies of any networks, machines; or services which are accessed through Global Crossing's network; or
(iii) infringes on the intellectual property rights of others.
Prohibited activity includes, but is not limited to, unauthorized use (or attempted unauthorized use) of any machines or networks; denial of service attacks; falsifying header information or user identification or information; monitoring or scanning the networks of others without permission; sending unsolicited bulk e-mail; maintaining an open mail relay; collecting e-mail addresses from the Internet for the purpose of sending unsolicited bulk e-mail or to provide collected addresses to others for that purpose; and transmitting or receiving copyright-infringing or illegally obscene material.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C
6.2 LimeLight and its customers are responsible for the security of their own networks and machines. Global Crossing assumes no responsibility or liability for failures or breach of LimeLight-imposed protective measures, whether implied or actual. Abuse that occurs as a result of LimeLight's systems or account being compromised may result in suspension of the IP Transit Service or account access by Global Crossing. If a security related problem is escalated to Global Crossing for resolution, Global Crossing will resolve the problem in accordance with its then-current Policy. Without limiting the Policy, generally, the following activities are prohibited:
(i) fraudulent activities of any kind;
(ii) network disruptions of any kind; and
(iii) unauthorized access, exploitation, or monitoring.
6.3 LimeLight shall be responsible for enforcing the Policy for any third parties (including its customers) accessing the Internet through LimeLight's use of the Network Services; and shall defend and indemnify Global Crossing with respect to claims related to such third party access.
6.4 Global Crossing reserves the right to suspend the IP Transit Service for LimeLight's or its customers' failure to comply with the requirements of Global Crossing's then-current Policy. Further, Global Crossing may terminate the IP Transit Service for recurring violations of the Policy by LimeLight or its customers.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C(a)
IP TRANSIT SERVICE RATE SCHEDULE
(CUSTOMER SPECIFIC)
1. MONTHLY RECURRING CHARGES (MRC)
A. T-1 IP Transit Pricing (MRC) $ Per Full T-1.
(Standard Circuit Pricing)
AGGREGATE # OF T-1S 1 YEAR TERM 2 YEAR TERM ------------------- ----------- ----------- 1+ T-1s [ * ] [ * ] |
B. DS-3 / OC-x / FE and GE Committed Bandwidth IP Transit Pricing (MRC) $ Per Mbps. These prices are valid for Standard Circuits provided LimeLight's overall traffic ratio for all circuits (both Standard circuits and Content circuits) have a traffic ratio greater than or equal to [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight).
(Standard Circuit Pricing)
1 YEAR TERM $ 2 YEAR TERM $ PER Mbps PER Mbps -------- -------- [ * ] [ * ] |
C. DS-3 / OC-x / FE and GE Committed Bandwidth IP Transit Pricing (MRC) $ Per Mbps. These prices are valid for Content Circuits with traffic ratios greater than or equal to [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight).
(Content Circuit Pricing)
D. Each Billing Cycle, at Global Crossing's sole discretion, Global Crossing will measure Limelight's [ * ] traffic ratio of all circuits (Standard and Content) . If such overall traffic ratio of all circuits is less then [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight), LimeLight will be assessed a [ * ] surcharge for all traffic on Standard Circuits for such Billing Cycle.
E. Each Billing Cycle, at Global Crossing's sole discretion, Global Crossing will measure LimeLight's [ * ] traffic ratio of all Content Circuits. If such aggregate traffic ratio of all Content Circuits is less then [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight), LimeLight will be assessed a [ * ] surcharge for all traffic on Content Circuits for such Billing Cycle. Such surcharge will be applied to all committed and bursted bandwidth.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C(a)
F. Should LimeLight be assessed a surcharge, in accordance with Sections 1.D. and/or 1.E. above, for a period of [ * ] consecutive Billing Cycles, Global Crossing agrees, at it's sole discretion, to re-evaluate LimeLight's terms and conditions under this IP Transit Service.
2. NON-RECURRING CHARGES (NRC)
MINIMUM INSTALL CHARGE CANCELLATION PORT BANDWIDTH** 1 YEAR TERM 2 YEAR TERM FEE ---- ----------- -------------- --- T-1 1.544 Mbps [ * ] [ * ] [ * ] DS-3 10 Mbps [ * ] [ * ] [ * ] OC-3 45 Mbps [ * ] [ * ] [ * ] OC-12 160 Mbps [ * ] [ * ] [ * ] OC-48* 500 Mbps [ * ] [ * ] [ * ] Fast Ethernet* 10 Mbps [ * ] [ * ] [ * ] 10 Mbps Gigabit Ethernet* months 1-6 and (2 year terms 250 Mbps only) for the balance of the term [ * ] [ * ] [ * ] |
NOTES:
*OC-48, Fast Ethernet and Gigabit Ethernet ports are available at select locations only.
**For DS-3 circuits and above, bandwidth can be purchased in increments of 5 Mbps above the minimum to the maximum bandwidth of the applicable circuit.
3. BURSTABLE BILLING CALCULATION AND CHARGES FOR STANDARD CIRCUITS
A. Burstable billing is available on DS-3 circuits and above. For Burstable billing, the table above represents the committed bandwidth rate. The total utilized bandwidth is derived from a 95/5 calculation as described below. The bandwidth utilized over and above the committed bandwidth amount, the bursted bandwidth, will be billed at 100% of the committed bandwidth rate as described below. Volume price breaks do not apply if volume threshold is surpassed due to bursted bandwidth.
B. Upon completion of each Billing Cycle during the Term, Global Crossing shall calculate the Bursted Bandwidth Charge for such Billing Cycle applicable to each circuit for which LimeLight has ordered burstable billing according to the following formula:
Bursted Bandwidth Charge =
(Total Utilized Bandwidth* -- Total Committed Bandwidth) x
(Committed Bandwidth rate per Mbps for Standard Circuits x 1.00)
* Total Utilized Bandwidth shall be calculated as follows:
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C(a)
- Global Crossing shall poll the Global Crossing routers for ingress and egress usage on each respective circuit approximately every five minutes. Both the ingress and egress number for each poll shall be stack ranked. Upon the close of each of LimeLight's Billing Cycles, the top 5% of the usage numbers shall be discarded. The next highest measurement, the greater of the ingress or egress, shall constitute the Total Utilized Bandwidth for the applicable circuit for the applicable Billing Cycle.
- Bursted Bandwidth usage shall not be factored into the aggregate volume of committed bandwidth capacity for purposes of altering LimeLight's committed bandwidth monthly recurring charge volume tier as set forth in this rate schedule. The outage credit set forth in the Exhibit shall not apply to Bursted Bandwidth.
4. BURSTABLE BILLING CALCULATION AND CHARGES FOR CONTENT CIRCUITS
A. Burstable billing is available on DS-3 circuits and above. For Burstable billing, the table above represents the committed bandwidth rate. The total utilized bandwidth is derived from a 95/5 calculation as described below. The bandwidth utilized over and above the committed bandwidth amount, the bursted bandwidth, will be billed at 100% of the committed bandwidth rate as described below. [ * ].
B. Upon completion of each Billing Cycle during the Term, Global Crossing shall calculate the Bursted Bandwidth Charge for such Billing Cycle applicable to the [ * ] all Content circuits for which LimeLight has ordered burstable billing according to the following formula:
[ * ] Bandwidth Charge =
([ * ]Utilized Bandwidth* -- [ * ]Committed Bandwidth) x
(Committed Bandwidth rate per Mbps for Content Circuits x 1.00)
* Total [ * ]Bandwidth shall be calculated as follows:
- Global Crossing shall poll the Global Crossing routers for ingress and egress usage on each respective circuit approximately every five minutes. The [ * ] of the [ * ] of the ingress and egress numbers for each poll shall be stack ranked. Upon the close of each of LimeLight's Billing Cycles, the top 5% of the [ * ] and [ * ] usage numbers shall be discarded. The next highest measurement, the greater of the [ * ] ingress or [ * ] egress, shall constitute the Total [ * ] Utilized Bandwidth for the applicable circuits for the applicable Billing Cycle.
- Bursted Bandwidth usage shall not be factored into the aggregate volume of committed bandwidth capacity for purposes of altering LimeLight's committed bandwidth monthly recurring charge volume tier as set forth in this rate schedule. The outage credit set forth in the Exhibit shall not apply to Bursted Bandwidth.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #1 TO BANDWIDTH/CAPACITY AGREEMENT
LimeLight Networks, LLC
February 7, 2002
This is Amendment #1 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc. ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same meaning as set forth in the Agreement.
2. In addition to LimeLight's existing IP Transit Service, as identified under the Agreement, the following shall be incorporated into the Agreement as part of Exhibit C(a), Section 1 C:
A. If Limelight orders an additional Gigabit Ethernet port in any
city, Limelight shall have a [ * ] to achieve and maintain a
[ * ] on a two (2) year port term commitment. Limelight will
be assessed the charges at the [ * ] level for the remaining
months on the 2 year port term commitment after the [ * ]
whether or not they are utilizing the full [ * ], (the
"Additional IP Port").
B. If Limelight chooses to waive the above mentioned [ * ] on such Additional IP Port, or orders any other IP port with a minimum circuit term commitment of [ * ], Limelight shall receive the Additional IP Port at a rate of [ * ] Mbps.
C. In addition if Limelight agrees to waive the [ * ] period, as noted in B above, the [ * ] Mbps minimum on the existing Gigabit Ethernet port shall be reduced to a [ * ] month port term commitment.
3. Any cost associated with entrance facilities shall utilize the pricing set forth in the Interconnection Entrance Facilities Schedule, attached here to a made a part hereof, and identified as Exhibit D.
4. This Amendment shall not prejudice any right or obligation that Global Crossing may have to assume or reject the Agreement under the United States Bankruptcy Code. Global Crossing expressly reserves the right to make such an election until it can more fully assess the impact that decision may have on its business and creditors and before, and subject to the requisite approval of, the United States Bankruptcy Court for the Southern District of New York.
5. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #1 shall remain in full force and effect.
6. This Amendment #1 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart ----------------------------------- ------------------------------ Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: ___________________________ Date: ________________________ |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit D
INTERCONNECTION ENTRANCE FACILITIES PRICING SCHEDULE
Interconnection Entrance Facilities Required -------- Monthly Install Applications (MRC) (NRC) ------------ ----- ----- STD. ELECTRICAL POTS DS-1 / T-1 / E-1* [ * ] [ * ] DS-3 / T-3 / E-3* [ * ] [ * ] STD. OPTICAL OC-3 / STM-1* [ * ] [ * ] OC-12 / STM-4* [ * ] [ * ] OC-48 / STM-16* [ * ] [ * ] IP/OTHER 10/100 Ethernet* [ * ] [ * ] Gigabit Ethernet* [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #2 TO BANDWIDTH/CAPACITY AGREEMENT
LimeLight Networks, LLC
April 2, 2002
This is Amendment #2 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc. ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same meaning as set forth in the Agreement.
2. LimeLight's Minimum Periodic Charge, as identified in Section 3.13 under the Agreement, shall be modified as follows:
"3.13 MINIMUM PERIODIC CHARGE: Beginning with LimeLight's first (1st.) Billing Cycle following the execution of this Amendment #2 by Global Crossing, LimeLight shall be liable for the following minimum charge(s) per Billing Cycle for all of the Services (the "MINIMUM CHARGE").
BILLING CYCLE MINIMUM CHARGE ------------- -------------- First Billing Cycle [ * ] Second Billing Cycle [ * ] Third Billing Cycle [ * ] Fourth Billing Cycle [ * ] Fifth Billing Cycle [ * ] Sixth Billing Cycle [ * ] Seventh Billing Cycle [ * ] Eighth Billing Cycle [ * ] Ninth Billing Cycle (June 2002) and each Billing Cycle thereafter See Exhibit C(a), 1. E. |
If LimeLight's net charges (after any available discounts hereunder) for the Services during a Billing Cycle are less than the Minimum Charge, LimeLight shall pay the shortfall. Governmental assessments and surcharges, non-recurring charges, local loop and third party and regulatory pass-through charges are not included when calculating the Minimum Charge."
3. The second paragraph of the IP Transit Schedule, Exhibit C, Section 4. under the Agreement shall be restated as follows:
"Upon signature of a Service Request (SR) by LimeLight, the Parties agree that the SR constitutes a firm IP Transit circuit order."
4. Item 2 of Amendment #1 shall be deleted in it's entirety.
5. Exhibit C(a), as identified under the Agreement, shall be modified to reflect new pricing as identified in Amended Exhibit C(a). The revised monthly recurring charges are effective as of March 1, 2002, for all existing IP Transit circuits and for all IP Transit circuit orders placed on a go forward basis.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
6. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #2 shall remain in full force and effect.
7. This Amendment #2 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart -------------------------------- ------------------------------- Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: Date: ------------------------------ ----------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C(a)
IP TRANSIT SERVICE RATE SCHEDULE
(CUSTOMER SPECIFIC)
1. MONTHLY RECURRING CHARGES (MRC)
A. T-1 IP TRANSIT PRICING (MRC) $ PER FULL T-1.
AGGREGATE # OF T-1S 1 YEAR TERM 2 YEAR TERM ------------------- ----------- ----------- 1+ T-1s [ * ] [ * ] |
B. DS-3 / OC-X / FE AND GE COMMITTED BANDWIDTH IP TRANSIT PRICING (MRC)
$ PER Mbps.
These prices are valid provided LimeLight's overall traffic ratio for all circuits is greater than or equal to [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight).
Global Crossing retains the right to place any of LimeLight's Gigabit Ethernet traffic on a switch, rather than a router, until Global Crossing orders and installs a card to send such traffic to a router. In these situations, LimeLight will be required to provide an up to date forecast to Global Crossing on the future traffic growth over the next three (3) months of the particular port.
C. Each Billing Cycle, at Global Crossing's sole discretion, Global
Crossing will measure LimeLight's [ * ] traffic ratio of all
circuits. If such overall traffic ratio of all circuits is less then
[ * ] "Inbound Traffic" (from LimeLight to the Global Crossing
backbone network) to "Outbound Traffic" (from the Global Crossing
backbone network to LimeLight), LimeLight will be assessed a [ * ]
surcharge for all traffic on such circuits for such Billing Cycle.
D. Should LimeLight be assessed a surcharge, in accordance with Section
1.C. above, for a period of [ * ] consecutive Billing Cycles, Global
Crossing agrees, at it's sole discretion, to re-evaluate LimeLight's
terms and conditions of this IP Transit Service.
ALL IP TRANSIT CIRCUITS INTERCONNECTING TO THE LOCATIONS IDENTIFIED
IN THE TABLES BELOW SHALL BE PRICED AT [ * ] PER Mbps
NORTH AMERICA* ------------------------------------------------------------ POP ADDRESS ---- ------------------------------------------------ ATL1 250 Williams Street, Suite 2120, Atlanta, GA CHI1 101 North Wacker Drive, Suite 310, Chicago, IL DAL1 2323 Bryan Street, Suite 900, Dallas, TX JFK 60 Hudson Street, Room 204, New York City, NY LAX1 624 South Grand, Suite 1020, Los Angeles, CA PAO2 529 Bryan Street, Palo Alto, CA SEA1 2001 6th Avenue, Suite 1604, Seattle, WA SFO1 274 Brannan Street, Suite 504, San Francisco, CA WDC2 1220 L Street, 6th Floor, Washington D.C. NYC2 111 Eighth Avenue, New York City, NY |
*ALL OTHER NORTH AMERICAN LOCATIONS NOT LISTED ABOVE WILL BE PRICED AT [ * ] PER
Mbps.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C(a)
EUROPE** ---------------------------------------------------------------------- POP ADDRESS ---- ---------------------------------------------------------- AMS2 Joop Geesinkweg 401-404 1096 AX Amsterdam, The Netherlands CDG2 7-9 Rue Petit 92310 Clichy, Paris, France FRA2 Kleyerstrasse 82, Frankfurt, Germany LIN1 Via San Giusto 51, Milan, Italy LON3 2040 East India Dock Road E14 9YY, London, UK |
**ALL OTHER EUROPEAN LOCATIONS NOT LISTED ABOVE WILL BE ON AN INDIVIDUAL CASE BASIS (ICB).
ALL EQUINIX LOCATIONS*** --------------------------------------------------- CITY LOCATION ---------- ------------------------------- ASHBURN VA 21711 Filigree Court Building F LOS ANGELES, CA 600 W 7th Street DALLAS, TX(N) 1950 Stemmons NEWARK, NJ(N) 165 Halsey CHICAGO, IL(N) 350 E Cermack SECAUCUS, NJ(N) 275 Hartz Way Secaucus, NJ SAN JOSE, CA(N) 11 Great Oaks |
***ALL OTHER EQUINIX LOCATIONS NOT LISTED ABOVE WILL BE ON AN ICB BASIS.
(N) THESE LOCATIONS MAY BE SUBJECT TO LOCAL ACCESS CHARGES. IF GLOBAL CROSSING BUILDS OUT TO THESE FACILITIES WITH A ROUTER LIKE GLOBAL CROSSING HAS DONE FOR LIMELIGHT IN THE ASHBURN, VA AND LOS ANGELES, CA LOCATIONS, THEN NO ADDITIONAL LOCAL ACCESS CHARGES WILL APPLY.
Note: Going forward, other locations that come to have the same characteristics as those listed in the above tables will be added to these tables periodically by Global Crossing.
E. In return for the [ * ] rate above (or [ * ] as applicable), commencing October 1, 2002, Global Crossing will charge LimeLight for a minimum of [ * ] per month whether [ * ] has been utilized or not.
Global Crossing agrees to review LimeLight's June 2002 IP Transit Service usage at months end to ensure that LimeLight has reached a minimum of [ * ] of aggregate traffic per month. Provided LimeLight has reached [ * ] then the [ * ] Mbps rate (or [ * ] as applicable) listed above will remain in place and Global Crossing will continue to charge LimeLight for a minimum [ * ] per month commencing October 1, 2002. However, if the review of LimeLight's June 2002 IP Transit Service usage reveals that LimeLight has not reached at least [ * ] of aggregate traffic by such time, then commencing July 1, 2002, all existing IP Transit circuits and any circuits ordered on a going forward basis will be at a rate of [ * ] as applicable). In that event, commencing October 1, 2002, Global Crossing will charge LimeLight for a minimum of [ * ] per month whether [ * ] has been utilized or not.
F. Any circuits ordered within [ * ] of the expiration of the Initial Term of the Agreement (on or after [ * ]) will need Global Crossing's approval. Any circuit approved and ordered will have a term that is concurrent with the Term of this Agreement.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit C(a)
2. NON-RECURRING CHARGES (NRC)
INSTALL CHARGE -------------- MINIMUM 1 YEAR 2 YEAR CANCELLATION PORT BANDWIDTH** TERM TERM FEE -------------- --------------- ------ ------ ------------ T-1 1.544 Mbps [ * ] [ * ] [ * ] DS-3 10 Mbps [ * ] [ * ] [ * ] OC-3 45 Mbps [ * ] [ * ] [ * ] OC-12 160 Mbps [ * ] [ * ] [ * ] OC-48* 500 Mbps [ * ] [ * ] [ * ] Fast Ethernet* 10 Mbps [ * ] [ * ] [ * ] 1 year term: 100 Mbps; Gigabit 2 year term: Ethernet* 10 Mbps months 1-6 and 100 Mbps for the balance of the term(n) [ * ] [ * ] [ * ] |
NOTES:
*OC-48, Fast Ethernet and Gigabit Ethernet ports are available at select locations only.
**For DS-3 circuits and above, bandwidth can be purchased in increments of 5 Mbps above the minimum to the maximum bandwidth of the applicable circuit.
(n)All existing and new Gigabit Ethernet circuits will have a 100 Mbps minimum on a go forward basis.
3. BURSTABLE BILLING CALCULATION AND CHARGES
A. Burstable billing is available on DS-3 circuits and above. For Burstable billing, the table above represents the committed bandwidth rate. The total utilized bandwidth is derived from a 95/5 calculation as described below. The bandwidth utilized over and above the committed bandwidth amount, the bursted bandwidth, will be billed at 100% of the committed bandwidth rate as described below. Volume price breaks do not apply if volume threshold is surpassed due to bursted bandwidth.
B. Upon completion of each Billing Cycle during the Term, Global Crossing shall calculate the Bursted Bandwidth Charge for such Billing Cycle applicable to the [ * ] circuits for which LimeLight has ordered burstable billing according to the following formula:
[ * ] Bursted Bandwidth Charge =
(Total [ * ]Utilized Bandwidth* -- Total [ * ]Committed Bandwidth) x
(Committed Bandwidth rate per Mbps for Circuits x 1.00)
* Total [ * ] Utilized Bandwidth shall be calculated as follows:
Global Crossing shall poll the Global Crossing routers for ingress and egress usage on each respective circuit approximately every five minutes. The [ * ] ingress and egress numbers for each poll shall be stack ranked. Upon the close of each of LimeLight's Billing Cycles, the top 5% of the [ * ] ingress and aggregate egress usage numbers shall be discarded. The next highest measurement, the greater of the [ * ] ingress or [ * ] egress, shall constitute the Total [ * ] Utilized Bandwidth for the applicable circuits for the applicable Billing Cycle.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #3 TO BANDWIDTH/CAPACITY AGREEMENT
LimeLight Networks, LLC
May 3, 2002
This is Amendment #3 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc. ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same meaning as set forth in the Agreement.
2. Global Crossing has approved a second colocation site for LimeLight as provided in the attached Exhibit B(b).
3. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #3 shall remain in full force and effect.
4. This Amendment #3 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart -------------------------------- ------------------------------- Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: Date: ------------------------------ ----------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
(GLOBAL CROSSING LOGO)
Exhibit B(b)
COLOCATION SCHEDULE #2
EQUIPMENT, SPACE AND POWER REQUIREMENTS
All terms and conditions as presented under the Agreement for the Colocation Service are applicable unless otherwise stated below and become incorporated herein.
Customer Name: LimeLight Networks, LLC
Global Crossing Switch Site Location: 801 S. 16th. Street, 1st. Floor, Phoenix, AZ Minimum Term : 1 Year Commencement Date: May 15, 2002 |
Monthly Recurring Charge: [ * ]
Non-Recurring Charges: [ * ]
Additional Power: [ * ]
If applicable, Make Ready Fees will be applied to LimeLight's Invoice.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #4 TO BANDWIDTH/CAPACITY AGREEMENT
LimeLight Networks, LLC
June 5, 2002
This is Amendment #4 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc. ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same meaning as set forth in the Agreement.
2. Global Crossing shall add the Phoenix POP to the list of North American IP Transit circuits as identified in Amended Exhibit C(a) of Amendment #2. The revised monthly recurring charge is effective as of March 1, 2002, for all existing IP Transit circuits and for all IP Transit circuit orders placed on a go forward basis.
NORTH AMERICA* ------------------------------------------------------- POP ADDRESS ---- --------------------------------------- PHX1 801 South 16th Street, Phoenix, Arizona |
*ALL OTHER NORTH AMERICAN LOCATIONS NOT LISTED ABOVE WILL BE PRICED AT [ * ] PER
Mbps.
3. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #4 shall remain in full force and effect.
4. This Amendment #4 is effective as of the date signed by Global Crossing
below. Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart -------------------------------- ------------------------------- Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: Date: ------------------------------ ----------------------------- |
(GLOBAL CROSSING LOGO)
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #5 TO BANDWIDTH/CAPACITY AGREEMENT
LimeLight Networks, LLC
June 20, 2002
This is Amendment #5 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc. ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "Agreement").
1. Except as otherwise stated, capitalized terms used herein have the same meaning as set forth in the Agreement.
2. Limelight's Payment Due Date, as identified in Section 3.7 under the Agreement, shall be modified to reflect [ * ] calendar days. All other terms and conditions of such section shall remain the same.
3. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #5 shall remain in full force and effect.
4. This Amendment #5 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart -------------------------------- ------------------------------- Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: Date: ------------------------------ ----------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
(GLOBAL CROSSING LOGO)
AMENDMENT #6 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
JANUARY 16, 2003
This is Amendment #6 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. LimeLight requests to Colocate with Global Crossing in Phoenix, Arizona, as set out in Exhibit E, attached to this Amendment.
3. All revised rates attached hereto and made a part hereof will be effective with LimeLight's first full Billing Cycle following the execution of this Amendment# 6 by Global Crossing.
4. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #6 shall remain in full force and effect.
5. This Amendment #6 is effective as of the date signed by Global Crossing
below. Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ----------------------------------------- ------------------------------- Barrett O. MacCheyne, Sr. Vice President William H. Rinehart, President North American Carrier Services Date: Date: --------------------------------------- ----------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
COLOCATION SCHEDULE #1
EQUIPMENT, SPACE AND POWER REQUIREMENTS
All terms and conditions as presented under the Agreement for the Colocation Service are applicable unless otherwise stated below and become incorporated herein.
Customer Name: LimeLight Networks, LLC
Global Crossing Switch Site Location: 801 S. 16th Street, 1st Floor Phoenix, Arizona
Minimum Term : One (1) Year
Commencement Date: Within two (2) weeks after execution of this Amendment #6
Monthly Recurring Charge: $ [ * ] Non-Recurring Charges: [ * ] If applicable, Make Ready Fee: [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #7 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
JANUARY 31, 2003
This is Amendment #7 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "Purchaser"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. The GOVERNING LAW provision of the Agreement, as identified in Section 16 thereof, as amended, shall be deleted in its entirety, and replaced with the following:
16. GOVERNING LAW:
This Agreement will be construed and enforced in accordance with the laws of the State of New York, without regard to its choice of law principles. The Parties agree that any action related to this Agreement shall be brought and maintained only in a Federal or State court of competent jurisdiction located in Monroe County, New York. The Parties each consent to the jurisdiction and venue of such courts and waive any right to object to such jurisdiction and venue.
3. The NOTICES provision of the Agreement, as identified in Section 17 thereof, as amended, shall be deleted in its entirety, and replaced with the following: :
17. NOTICES:
All notices, including but not limited to, demands, requests and other communications required or permitted hereunder (not including Invoices) shall be in writing and shall be deemed given: (i) when delivered in person, (ii) 24 hours after deposit with an overnight delivery service for next day delivery, (iii) the same day when sent by facsimile transmission during normal business hours, receipt confirmed by sender's equipment, or (iv) three Business Days after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, and addressed to the recipient Party at the address set forth below:
If to Global Crossing: Global Crossing Bandwidth, Inc. 161 Chestnut Street One City Centre, 3rd Floor Rochester, New York 14604 Attention: Senior Vice President, North American Carrier Services Facsimile # (585) 262-6263 |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
with a copy to: Global Crossing Bandwidth, Inc. 161 Chestnut Street One City Centre, 3rd Floor Rochester, New York 14604 Attention: Manager, National Contract Admin. Facsimile # (585) 454-5825 If to LimeLight: LimeLight Networks, LLC 8936 N. Central Avenue Phoenix, AZ 85020 Attn: Gary Baldus, Vice President of Corporate Development Facsimile #: (602) 850-5001 |
4. LimeLight's Minimum Periodic Charge, as last set out in Section 2 of Amendment #2, shall be modified as follows:
"3.13 MINIMUM PERIODIC CHARGE: Beginning with LimeLight's October, 2002 Billing Cycle, LimeLight shall be liable for the following minimum charge(s) per Billing Cycle for all of the Services (the "MINIMUM CHARGE").
BILLING CYCLES MINIMUM CHARGE Oct, Nov & Dec, 2002 Per Amended Exhibit C(a)attached to this Amendment January, 2003 and each Bill Cycle thereafter [ * ] |
If LimeLight's net charges (after any available discounts hereunder) for the Services during a Billing Cycle are less than the Minimum Charge, LimeLight shall pay the shortfall. Governmental assessments and surcharges, non-recurring charges, local loop and third party and regulatory pass-through charges are not included when calculating the Minimum Charge."
5. LimeLight's IP Transit rates, last set out in Amended Exhibit C(a), of Amendment #2, shall be replaced in its entirety as set out in Amended Exhibit C(a) attached to this Amendment #6.
6. LimeLight's Interconnection Entrance Facilities Pricing for DS-1/ T-1 / E-1 last set out in Amended #1 Exhibit D, shall be deleted and specified in the new Exhibit C(a) as attached
7. LimeLight requests subscription to Global Crossing's International Private Line Service as set out on Exhibit E, attached to this Amendment and may order specific circuits, in accordance with, and at the prices included in, the attached Private Line Service Order Form, incorporated into, and made a part of, this Amendment.
8. LimeLight requests subscription to Global Crossing's Mid Span Meet Access Service as set out in Exhibit F attached to this Amendment #6.
9. Global Crossing will extend NRC charges of [ * ] and above over a [ * ] period to ease the barrier to entry for new sites.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
10. Global Crossing agrees to waive the [ * ] revenue commitment for Colocation services for Limelight and agrees to replace the Agreement's Exhibit B number 9 as follows:
RATES AND CHARGES: LimeLight shall be charged for Colocation Space at the rates set out below.
MONTHLY RECURRING CHARGES
MRC per Rack or Cabinet [ * ] (with [ * ] of power) -------------------------------------------------------------------------------- Additional Power [ * ] -------------------------------------------------------------------------------- |
NON RECURRING CHARGES:
NRC per Rack/Cabinet per site [ * ] -------------------------------------------------------------------------------- Colocation Site [ * ] -------------------------------------------------------------------------------- Make Ready Fee [ * ] -------------------------------------------------------------------------------- |
Dispatch Fees: [ * ] per hour (I hour minimum) for unmanned sites during business hours (Monday through Friday 8:00 am to 6:00 p.m.) and [ * ] per hour (2 hour minimum,) for unmanned sites during non-business hours and nationally recognized holidays.
11. All revised rates are attached hereto and made a part hereof, and so long as LimeLight signs this Amendment and returns it to Global Crossing no later than the close of business on February 4, 2002, will be effective on a go forward basis with LimeLight's Billing Cycle commencing January 1, 2003. In the event the Amendment is not returned by said date), the new rates will be effective with LimeLight's first full Biling Cycle following the execution of this Amendment #7 by Global Crossing.
12. The revised IP Transit monthly recurring charges are effective as of LimeLights Billing Cycle commencing on January 1, 2003, so long as LimeLight signs this Amendment and returns it to Global Crossing no later than the close of business on February 4, 2002 In the event the Amendment is not returned by said date, the new rates will be effective with LimeLight's first full Biling Cycle following the execution of this Amendment #7 by Global Crossing.
13. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #7 shall remain in full force and effect.
14. This Amendment #7 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC. By: /s/ Gregory L. Spraetz By: /s/ William H. Rinehart ----------------------------------- ----------------------------- Gregory L. Spraetz, Vice President William H. Rinehart, President North American Carrier Services Date: Date: ------------------------------- --------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C(a)
1. MONTHLY RECURRING CHARGES (MRC) AND NON-RECURRING CHARGES (NRC)
a. New DS-1 MRC & NRC, as set in the table below.
MRC NRC CANCELLATION FEE INTERCONNECTION FEE FULL PIPE 1YEAR TERM 1YEAR TERM 1 YEAR TERM 1YEAR TERM -------------------------------------------------------------------------------- DS-1 [ * ] [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- |
*Provided LimeLight orders its own local loop.
3. MONTHLY RECURRING CHARGES (MRC)
A. New DS-3 / OC-x / FE and GE Committed Bandwidth IP Transit Pricing (MRC) $ Per Mbps.
These prices are valid provided LimeLight's overall traffic ratio for all circuits is greater than or equal to [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight).
Global Crossing retains the right to place any of LimeLight's Gigabit Ethernet traffic on a switch, rather than a router, until Global Crossing orders and installs a card to send such traffic to a router. In these situations, LimeLight will be required to provide an up to date forecast to Global Crossing on the future traffic growth over the next three (3) months of the particular port.
B. Each Billing Cycle, at Global Crossing's sole discretion, Global Crossing will measure LimeLight's [ * ] traffic ratio of all circuits. If such overall traffic ratio of all circuits is less then [ * ] "Inbound Traffic" (from LimeLight to the Global Crossing backbone network) to "Outbound Traffic" (from the Global Crossing backbone network to LimeLight), LimeLight will be assessed a [ * ] surcharge for all traffic on such circuits for such Billing Cycle.
C. Should LimeLight be assessed a surcharge, in accordance with Section
1.C. above, for a period of [ * ] consecutive Billing Cycles, Global
Crossing agrees, at it's sole discretion, to re-evaluate LimeLight's
terms and conditions of this IP Transit Service.
ALL IP TRANSIT CIRCUITS INTERCONNECTING TO THE LOCATIONS IDENTIFIED IN THE
TABLES BELOW SHALL BE PRICED AT [ * ] Mbps
NORTH AMERICA* -------------------------------------------------------------------------------- POP ADDRESS -------------------------------------------------------------------------------- ATL1 250 Williams Street, Suite 2120, Atlanta, GA -------------------------------------------------------------------------------- CHI1 101 North Wacker Drive, Suite 310, Chicago, IL -------------------------------------------------------------------------------- DAL1 2323 Bryan Street, Suite 900, Dallas, TX -------------------------------------------------------------------------------- JFK 60 Hudson Street, Room 204, New York City, NY -------------------------------------------------------------------------------- LAX1 624 South Grand, Suite 1020, Los Angeles, CA -------------------------------------------------------------------------------- PAO2 529 Bryan Street, Palo Alto, CA -------------------------------------------------------------------------------- SEA1 2001 6th Avenue, Suite 1604, Seattle, WA -------------------------------------------------------------------------------- SFO1 274 Brannan Street, Suite 504, San Francisco, CA -------------------------------------------------------------------------------- WDC2 1220 L Street, 6th Floor, Washington D.C. -------------------------------------------------------------------------------- NYC2 111 Eighth Avenue, New York City, NY -------------------------------------------------------------------------------- PHX1 801 South 16th Street, Phoenix, Arizona -------------------------------------------------------------------------------- *ALL OTHER NORTH AMERICAN LOCATIONS NOT LISTED ABOVE WILL BE PRICED AT [ * ]. |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C(a)
EUROPE** POP ADDRESS -------------------------------------------------------------------------------- AMS2 Joop Geesinkweg 401-404 1096 AX Amsterdam, The Netherlands -------------------------------------------------------------------------------- CDG2 7-9 Rue Petit 92310 Clichy, Paris, France -------------------------------------------------------------------------------- FRA2 Kleyerstrasse 82, Frankfurt, Germany -------------------------------------------------------------------------------- LIN1 Via San Giusto 51, Milan, Italy -------------------------------------------------------------------------------- LON3 2040 East India Dock Road E14 9YY, London, UK -------------------------------------------------------------------------------- **ALL OTHER EUROPEAN LOCATIONS NOT LISTED ABOVE WILL BE ON AN INDIVIDUAL CASE BASIS (ICB). |
ALL EQUINIX LOCATIONS*** CITY LOCATION -------------------------------------------------------------------------------- ASHBURN VA 21711 Filigree Court Building F -------------------------------------------------------------------------------- LOS ANGELES, CA 600 W 7th Street -------------------------------------------------------------------------------- DALLAS, TX(N) 1950 Stemmons -------------------------------------------------------------------------------- NEWARK, NJ(N) 165 Halsey -------------------------------------------------------------------------------- CHICAGO, IL(N) 350 E Cermack -------------------------------------------------------------------------------- SECAUCUS, NJ(N) 275 Hartz Way Secaucus, NJ -------------------------------------------------------------------------------- SAN JOSE, CA(N) 11 Great Oaks -------------------------------------------------------------------------------- |
***ALL OTHER EQUINIX LOCATIONS NOT LISTED ABOVE WILL BE ON AN ICB BASIS.
(N) THESE LOCATIONS MAY BE SUBJECT TO LOCAL ACCESS CHARGES. IF GLOBAL CROSSING BUILDS OUT TO THESE FACILITIES WITH A ROUTER LIKE GLOBAL CROSSING HAS DONE FOR LIMELIGHT IN THE ASHBURN, VA AND LOS ANGELES, CA LOCATIONS, THEN NO ADDITIONAL LOCAL ACCESS CHARGES WILL APPLY.
Note: Going forward, other locations that come to have the same characteristics as those listed in the above tables will be added to these tables periodically by Global Crossing.
D. In return for the [ * ] rate above (or [ * ] as applicable), commencing
January 1, 2003, Global Crossing will charge LimeLight for a minimum of
[ * ] per month whether [ * ] has been utilized or not. In addition, for
all traffic above the [ * ] level, Global Crossing will charge Limelight
at a rate of [ * ].
E. Any circuits ordered within one (1) year of the expiration of the Initial Term of the Agreement (on or after August 29, 2003) will need Global Crossing's approval. Any circuit approved and ordered will have a term that is concurrent with the Term of -- this Agreement.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C(a)
DS-3 AND ABOVE NON-RECURRING CHARGES (NRC)
INSTALL CHARGE MINIMUM 1 YEAR 2 YEAR CANCELLATION PORT BANDWIDTH** TERM TERM FEE -------------------------------------------------------------------------------- DS-3 10 Mbps [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- OC-3 45 Mbps [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- OC-12 160 Mbps [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- OC-48* 500 Mbps [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- Fast Ethernet* 10 Mbps [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- 1 year term: 100 Mbps; 2 year term: 10 Mbps Gigabit months 1-6 and Ethernet* 100 Mbps for the balance of the term(n) [ * ] [ * ] [ * ] -------------------------------------------------------------------------------- |
NOTES:
*OC-48, Fast Ethernet and Gigabit Ethernet ports are available at select locations only.
**For DS-3 circuits and above, bandwidth can be purchased in increments of 5 Mbps above the minimum to the maximum bandwidth of the applicable circuit.
(n)All existing and new Gigabit Ethernet circuits will have a 100 Mbps minimum on a go forward basis.
3. BURSTABLE BILLING CALCULATION AND CHARGES
A. Burstable billing is available on DS-3 circuits and above. For Burstable billing, the table above represents the committed bandwidth rate. The total utilized bandwidth is derived from a 95/5 calculation as described below. The bandwidth utilized over and above the committed bandwidth amount, the bursted bandwidth, will be billed at 100% of the committed bandwidth rate as described below. Volume price breaks do not apply if volume threshold is surpassed due to bursted bandwidth.
B. Upon completion of each Billing Cycle during the Term, Global Crossing shall calculate the Bursted Bandwidth Charge for such Billing Cycle applicable to the [ * ] of all circuits for which LimeLight has ordered burstable billing according to the following formula:
[ * ] Bursted Bandwidth Charge =
(Total [ * ]Utilized Bandwidth* -- Total [ * ]Committed Bandwidth) x
(Committed Bandwidth rate per Mbps for Circuits x 1.00)
* Total [ * ]Utilized Bandwidth shall be calculated as follows:
Global Crossing shall poll the Global Crossing routers for ingress and
egress usage on each respective circuit approximately every five
minutes. The [ * ] the ingress and egress numbers for each poll shall
be stack ranked. Upon the close of each of LimeLight's Billing Cycles,
the top 5% of the [ * ] ingress and aggregate egress usage numbers
shall be discarded. The next highest measurement, the greater of the [
* ]ingress or [ * ]egress, shall constitute the Total [ * ] Utilized
Bandwidth for the applicable circuits for the applicable Billing
Cycle.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
SPECIFIC SERVICE TERMS AND CONDITIONS
FOR
PRIVATE LINE SERVICE
Private Line Service. These are the specific terms and conditions for Private Line Service, together with the Order Form shall become an Appendix to the Agreement.
I. SPECIFIC SERVICE TERMS AND CONDITIONS
1. Private Line Service provides point-to-point connectivity over a dedicated circuit between city pairs (for example, New York -- London, Amsterdam - Rotterdam) on the Global Crossing Network. Availability of specific city pairs will be confirmed with Global Crossing at time of order. Support and maintenance are provided by the Global Crossing Customer Support Center.
2. Circuits may be available at speeds of T1, E1, E3, DS3, STM1/OC3, STM4/OC12, or STM16/OC48 depending upon capacity available and geographical reach. Lower speeds may be available in certain circumstances upon Limelight inquiry. Availability will be confirmed with Global Crossing at time of order. The selected type of service, pricing and length of circuit term commitment shall be specified on the Order Form. At the conclusion of the circuit term commitment (or any extension thereof) for any Service, such circuit term commitment shall automatically be extended at the same rates, terms and conditions for subsequent [ * ] periods unless terminated by either Party upon written notice delivered not less than sixty (60) days prior to the expiration of the current circuit term commitment (or any extension thereof). The Service is designed to comply with ETSI and ITU-T recommendations, including specifically ITU-T recommendation G.826 for error performance.
4. The Service is further subdivided between Global Crossing POP to Global Crossing POP Service ("POP to POP") and Limelight Premises to Limelight Premises Service ("Prem to Prem") categories. Limelight's selection between these two options shall be indicated on the Order Form.
4.1 "POP to POP" is between Global Crossing POPs, with Limelight self-provided or self-arranged local access.
4.1.1 Where Limelight chooses "POP to POP" Service, Global Crossing will charge a POP Interconnection Fee, which is a monthly recurring charge ("MRC") for access connections involving third party vendors. This POP Interconnection Fee is chargeable in respect of the cross-connection between the access vendor's circuit and the Global Crossing Network, and (if applicable) in respect of the allocation to Limelight of capacity from an access vendor already co-located at a Global Crossing POP. The POP Interconnection Fee varies depending upon the circuit speed of the access connection and can be found in Amendment 1 Exhibit D.
4.2 If local loop access at each end of the circuit to Limelight's premises is supplied by Global Crossing on a Global Crossing-owned city ring or Metro Network, the Service will also be classified as "POP to POP".
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
4.3 "Prem to Prem" incorporates the local loop connection from Limelight Interface to the Global Crossing POP over facilities not owned by Global Crossing. Availability of "Prem to Prem" is dependent upon availability of SDH/SONET local access circuits from third party suppliers which are resold by Global Crossing. Limelight may select "POP" access or "Prem" access at either end of a circuit. Selection of "Prem" access at either end of a circuit over facilities not owned by Global Crossing shall mean that the Service will be classified as "Prem to Prem."
4.3.1 Where "Prem" access is requested from Global Crossing over resold local access circuits, Global Crossing selects the third party supplier. In the event Limelight specifies a local access supplier not approved by Global Crossing, the "Prem" access guarantees are not available.
4.4 If Limelight requests "Prem" access (i.e., local loop) from Global Crossing, whether on a Global Crossing-owned city ring or Metro Network, or on a resold basis, and it is available, the "Prem" access details shall be recorded in the Access Sections of the Order Form.
4.5 For "POP to POP" the Limelight Interface is --
4.5.1 At the Global Crossing Digital Distribution Frame for bandwidths lower than OC3/STM1, or the Global Crossing Optical Distribution Frame for OC3/STM1 and higher bandwidths, both of which are located within the Global Crossing POP. The local access circuit or other connection to Limelight's equipment, whether located at Limelight's premises or a telehouse, is the responsibility of Limelight. (Global Crossing will maintain the cross-connection used for POP Interconnection); or
4.5.2 At the Network Terminating Point (NTP) located on Limelight's premises if "Prem" access is provided by Global Crossing over a Global Crossing-owned city ring or Metro Network at both ends of the circuit. Global Crossing will provision and install a Network Terminating Unit ("NTU") at the NTP. Cabling and maintenance from the NTU to Limelight's equipment is the responsibility of Limelight.
4.6 For "Prem to Prem" Limelight's Interface is at the NTP located on Limelight's premises. Global Crossing will provision and install an NTU at the NTP. Cabling and maintenance from the NTU to Limelight's equipment is the responsibility of Limelight.
II. SERVICE LEVEL AGREEMENT:
1. Maintenance. Global Crossing provides a coordinated, single point of contact maintenance function for Limelight on a 7 day x 24 hour x 365 day basis, which will be identified to Limelight. Maintenance support is on a circuit level basis between Limelight Interfaces.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
2. Installation
2.1 Installation Provisioning
2.1.1 "POP to POP". Global Crossing commits to provision a "POP to POP" circuit on the mutually agreed RFS Date (sometimes also referred to by Global Crossing as "Limelight Commit Date") following Global Crossing's acceptance of Limelight's order. 2.1.1.1 Requested service date(s) recorded on the Order Form do not establish the RFS Date/Limelight Commit Date. Instead, the Global Crossing and Limelight Project Managers for the Service shall agree upon the specific RFS Date/Limelight Commit Date following order acceptance. 2.1.1.2 The mutually agreed RFS Date/Limelight Commit Date for provisioning a "POP to POP" circuit is typically within 30-45 days of order acceptance. This guarantee excludes testing and circumstances where Limelight is not ready to receive or use the circuit. 2.1.1.3 Orders for changes in existing private line configurations are accepted within the absolute discretion of Global Crossing; if accepted, the change will be completed within the same time period as for an initial installation. Global Crossing's customary charges will apply for the change. 2.1.2 "Prem to Prem". Global Crossing commits to provision a "Prem to Prem" circuit on the mutually agreed RFS Date/ Limelight Commit Date following Global Crossing's acceptance of Limelight's order. 2.1.2.1 Requested service date(s) recorded on the Order Form do not establish the RFS Date/Limelight Commit Date. Instead, the Global Crossing and Limelight's Project Managers for the Service shall agree upon the specific RFS Date/Limelight Commit Date following order acceptance. 2.1.2.2 The mutually agreed RFS Date/Limelight Commit Date for provisioning a "Prem to Prem" circuit is typically within 60-90 days of order acceptance, including local access circuits. This guarantee excludes testing and circumstances where the Limelight is not ready to receive or use the circuit. 2.1.3 Orders for changes in existing private line configurations are accepted within the absolute discretion of Global Crossing; if accepted, the change will be completed within the same time period as for an initial installation. Global Crossing's customary charges will apply for the change. |
2.2 Installation Credits. If the provisioning times stated in Section 2.1.1.2 are not met, Global Crossing will issue a credit to Limelight according to the following schedule:
Number of Calendar Days Percentage Credit on RFS Date Exceeded Installation Charge -------------------------------------------------------------------- 1 -- 7 [ * ] -------------------------------------------------------------------- 8 -- 14 [ * ] -------------------------------------------------------------------- 15 -- 30 [ * ] -------------------------------------------------------------------- Greater than 30 [ * ] -------------------------------------------------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
2.3 Exclusions on Credits. No Provisioning SLA credits apply in the following circumstances:
(a) Where the completed service order is modified by or at the initiative of Limelight after its original completion;
(b) Where Limelight is not ready to receive or use the circuit; and
(c) Where Limelight site connection on a Global Crossing-owned city ring or Metro Network has not been fully completed.
3. Availability
3.1 Guarantee of Availability. Global Crossing guarantees circuit availability at the following levels:
"POP TO POP" SERVICE -- [ * ]
"PREM TO PREM" SERVICE -- [ * ]
3.1.1 East Asia Crossing ("EAC"). EAC "POP to POP" Service is guaranteed at [ * ]availability prior to EAC ring closure. EAC "POP to POP" Service is guaranteed at [ * ]following EAC ring closure. |
3.2 Measurement. Circuit availability is a measure of the relative amount of time a circuit is available for Limelight use during a thirty (30) calendar day month.
3.3 Service Outage Credit. Subject to the Credit Limits and Exclusions described below, and to Limelight's compliance with Incident Reporting Procedures described below, Global Crossing will issue a credit for Outages according to the following Schedules, as applicable to the specific type of Service ordered by Limelight:
"POP TO POP" SERVICE "PREM TO PREM" SERVICE --------------------------------------------------------------------------------------------------------------- PERIOD OF OUTAGE PERCENT CREDIT OF MRC PERIOD OF OUTAGE PERCENT CREDIT OF MRC --------------------------------------------------------------------------------------------------------------- 0 -- 4.32 Minutes [ * ] 0 -- 44 Minutes [ * ] --------------------------------------------------------------------------------------------------------------- 4.33 -- 240 Minutes [ * ] 45 -- 240 Minutes [ * ] --------------------------------------------------------------------------------------------------------------- 241 -- 480 Minutes [ * ] 241 -- 480 Minutes [ * ] --------------------------------------------------------------------------------------------------------------- 481 Minutes or More [ * ] 481 Minutes or More [ * ] --------------------------------------------------------------------------------------------------------------- |
Each credit is calculated per affected circuit, based on cumulative circuit Outage duration in a given month, and is represented as a credit to the MRC for the affected circuit. Each Outage credit will be measured from the time that Global Crossing receives notice from the Limelight of actual circuit unavailability and a "Trouble Ticket" is established, until circuit availability is restored by Global Crossing.
If, in any one month period, LimeLight experiences one continuous
unplanned outage in excess of [ * ]hours, OR in any consecutive [ *
]period, LimeLight experiences [ * ]continuous unplanned outages in
excess of [ * ]due to circumstances other than force majeure (the
"MAXIMUM OUTAGE"), LimeLight may choose to terminate the affected
circuit without penalty provided that written notice is provided to
Global Crossing within [ * ]days of the last Maximum Outage. If after
[ * ]days from the last Maximum Outage, LimeLight has not provided
written notice to Global Crossing, LimeLight waives the right to
terminate the circuit
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
3.4 Exclusions. The following Outages are excluded from Availability SLA credit eligibility:
(a) Outages attributable in whole or in part to Limelight's premises equipment (whether or not owned by Limelight), or to local access facilities ordered directly by Limelight;
(b) Outages attributable to a local loop circuit which is not SDH or SONET;
(c) Outages attributable in whole or in part to any act or omission of Limelight or any third party, including but not limited to, Limelight's agents, contractors or vendors;
(d) Outages attributable to Global Crossing network maintenance, both scheduled and emergency maintenance;
(e) Force majeure events, as described in the Agreement; and
(f) Outages attributable to "Off-Net Circuits," that is, circuits
provided by third-party suppliers where the circuits are either
(i) international circuits, or (ii) long-haul domestic circuits.
(Local loop access circuits provided by third party suppliers are
not considered Off-Net Circuits.) If Limelight purchases a
circuit to a PoP that is not on-net to Global Crossing (for
example Fargo, ND) the portion of the circuit that is not on GC's
network would not be covered by our SLA. Limelight may choose not
to purchase circuits to off-net PoPs if this is a concern.
3.5 Additional Eligibility Rules
3.5.1 Availability guarantee on STM4/OC12 and STM16/OC48 circuits is limited to the "POP to POP" Service guarantee. STM4/OC12 and STM16/OC48 circuits are not eligible for a "Prem to Prem" Service guarantee. At such time in the future as Global Crossing offers a "Prem to Prem" Service guarantee on STM4/OC12 circuits, and STM16/OC48 Limelight will be notified. 3.5.2 In Japan, Limelight's subscribing to NTT East Digital Access Service will not be eligible for a "Prem to Prem" Service guarantee. |
3.5.3 East Asia Crossing. Please refer to Section 3.1.1, above.
3.5.4 Whenever a "Prem to Prem" Service guarantee is not available (for example, when SDH or SONET access circuits cannot be provisioned by Global Crossing), Limelight shall automatically receive the "POP to POP" Service guarantee on its POP to POP circuits. 4 Credit Limits. |
4.1 In no event may the credits provided for hereunder exceed Limelight's total Monthly Recurring Charge for any covered circuit that is affected. Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges and similar additional charges.
4.2 Exclusive Remedy. These credits are Limelight's exclusive remedy with respect to items covered by this Service Level Agreement.
4.3 Global Crossing issued credits will be made available on the next bill or as promptly thereafter as possible.
4.4 Limelight is responsible for providing Global Crossing a written request for a credit under this SLA within [ * ] of the suspected failure.
4.5 Global Crossing shall issue only one credit for qualifying occurrences in any billing month, regardless of the time of occurrence.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
III. ORDER CANCELLATION CHARGES
Limelight acknowledges that Global Crossing commenced provisioning of Limelight's order for Service in reliance upon Limelight's commitment for the Service. In the event of cancellation of Limelight's Service order for any reason, Limelight shall be liable to pay Global Crossing, as liquidated damages, actual costs incurred in reliance upon Limelight's order, plus a percentage of the Installation Charge according to the following schedule:
TIME OF CANCELLATION % OF INSTALLATION FEE -------------------------------------------------------- ----------------------- Before Order Confirmation [ * ] After Order Confirmation [ * ] After 50% of period from Order Confirmation to RFS Date [ * ] After 75% of period from Order Confirmation to RFS Date [ * ] Two Days or Less Before RFS Date [ * ] |
IV. BILLING COMMENCEMENT
Before the original RFS Date/Limelight Commit Date for a POP to POP or a
Prem to Prem circuit, Limelight may, upon prompt written notice to Global
Crossing, postpone the scheduled implementation date for that location. If
Limelight postpones any scheduled implementation date for more than thirty
(30) days beyond the original RFS Date/Limelight Commit Date, then the
Thirty First (31st) day following the original RFS Date/Limelight Commit
Date shall be deemed the Service Commencement Date and Global Crossing
shall be entitled to commence billing for the Service on that date,
regardless of whether or not Limelight has commenced using the Service.
V. ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO ORDERING "PREM" ACCESS FROM GLOBAL CROSSING
1. Ordering "Prem" Access from Global Crossing.. Where Limelight orders "Prem" access from Global Crossing, details of locations, type of access, service speeds, pricing etc. associated with the "Prem" access shall be listed on the Access Sections of the Order Form. (Upon Limelight signature of (i) the Order Form (including completed Access Sections) and (ii) these Specific Terms and Conditions, Limelight shall not be required to execute a further "Access Appendix" under the Agreement for the "Prem" access.)
2. Conditions to "Prem" Access Orders. Limelight understands and acknowledges that "Prem" local loop access is offered by Global Crossing on an "as available" basis and, where not supplied by Global Crossing directly via a city ring or Metro Network, is dependent upon the supply of access services from third party vendors. Likewise, service speeds for the "Prem" access are offered on an "as available" basis. Finally, Service Level Agreements under this Appendix include local circuits only where the local circuits are both (i) ordered and installed by Global Crossing as part of supply of "Prem" access, and (ii) SDH/SONET circuits.
3. Physical Access at Circuit Location Address.
A. In addition to its general responsibility to afford physical access to Global Crossing or its third party vendor, Limelight is responsible for arranging physical access to any of the rights of way, conduit and/or equipment space necessary to provide Service to Limelight's Circuit Location Address (that is, the Limelight-specified location of Limelight Interface) to support installation, repair, maintenance, inspection, replacement or removal of any and all facilities and/or equipment for the Service provided by Global Crossing or its third party vendor. Access to such site shall be made available at a time mutually agreeable to Limelight and Global Crossing or its third party vendor. Global Crossing and/or its third party vendor shall also have the right to obtain access to cable installed in Limelight-provided conduit at any splice or junction box.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit E
B. Unless otherwise agreed by Limelight and Global Crossing in writing, Limelight shall provide the necessary space, conduit and electrical power required to terminate and maintain the facilities and NTU used to provide Service to a Circuit Location Address without charge or cost to Global Crossing. The space, conduit and power shall be available to Global Crossing on a timely basis. Limelight shall be responsible for assuring that the equipment space and associated facilities, conduit and rights of way which it is providing are a safe place to work and are protected against fire, theft, vandalism or other casualty, and that the use thereof complies with all applicable laws, rules and regulations and with all applicable leases or other contractual Agreements.
4. Pricing.
A. IN ADDITION TO THE ONE-TIME INSTALLATION CHARGE AND MONTHLY RECURRING CHARGE, AS SET FORTH ON THE ORDER FORM FOR THE "PREM" ACCESS, LIMELIGHT ORDERING "PREM' ACCESS SHALL ALSO BE RESPONSIBLE FOR MISCELLANEOUS CHARGES. MISCELLANEOUS CHARGES SHALL INCLUDE ANY CHARGES FOR SPECIAL CONSTRUCTION REQUIREMENTS, EXPEDITE REQUESTS, INSIDE WIRE EXTENSIONS, OR THE LIKE. NOTWITHSTANDING THE ABOVE, THE MISCELLANEOUS CHARGES SHALL NOT BE GREATER THAN [ * ] OF THE LISTED COSTS IN THE ORDER FORM UNLESS APPROVED IN WRITING LIMELIGHT OR LIMELIGHT WILL HAVE THE RIGHT TO CANCEL THE ORDER FORM IN PARTS OR AS A WHOLE WITH OUT ANY PENALTY.
B. Limelight acknowledges that the charges set forth on the Order Form are based upon the best current information available to Global Crossing. Global Crossing reserves the right to vary its charges for "Prem" access at any time, upon thirty days' advance written notice. If the charges vary greater than [ * ] of the listed charges set forth in the Order Form then Limelight will have the right to cancel the Order Form in parts or as a whole with out any penalty.
C. Pricing for the Private Line Service (Continental US) is based upon the length of the circuit term commitment according to the following rate schedule.
TIER 1 PRICING is applicable for circuits that both originate and terminate in one of the Tier 1 Cities. Tier 1 Cities are the following U.S. cities (as cities may be added to and deleted from the list by Global Crossing from time to time): [ * ].
TIER 2 PRICING is applicable for circuits that do not originate and terminate in any of Tier 1 Cities and for any circuit which has one segment originating or terminating in any Tier 1 Cities.
TIER 1 PRICING TIER 2 PRICING CIRCUIT DSO MILE RATE DSO MILE RATE MINIMUM MONTHLY CAPACITY 1 YEAR 2 YEAR 1 YEAR 2 YEAR CHARGE PER CIRCUIT -------- ------ ------ ------ ------ ------------------ DS-1 [ * ] [ * ] [ * ] [ * ] [ * ] DS-3 [ * ] [ * ] [ * ] [ * ] [ * ] OC-3 [ * ] [ * ] [ * ] [ * ] [ * ] OC-12 [ * ] [ * ] [ * ] [ * ] [ * ] OC-48 [ * ] [ * ] [ * ] [ * ] [ * ] |
Note: Pricing is per DS-0 mile rate times the V & H mileage for specific city pairs.
NON-RECURRING CHARGES INSTALLATION EXPEDITE --------------------- ------------ -------- DS-1 [ * ] [ * ] DS-3 [ * ] [ * ] OC-3 [ * ] [ * ] OC-12 [ * ] [ * ] OC-48 [ * ] [ * ] |
Installation charges are per end.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
MID SPAN MEET ACCESS SERVICE
All Mid Span Meet facilities are pending Global Crossing's Engineering approval based upon the information provided to Global Crossing by Limelight in the Service Inquiry Form. Any approved facilities shall be presented to Limelight as an amendment pursuant to Section A Subdivision 2 below.
TERMS AND CONDITIONS
A. SERVICE OVERVIEW
1. Global Crossing shall provide Mid Span Meet Access Service ("MSM Access" or "Service") to Limelight, consisting of connectivity between the Global Crossing network Point of Presence ("Global Crossing POP") and a Network Fiber Distribution Panel ("NFDP") owned and maintained by Global Crossing on Global Crossing Premises. The connectivity is accomplished by a fiber jumper cable supplied by Global Crossing. The connection at the Global Crossing POP is to circuit(s) previously purchased, or subscribed for, by Limelight. MSM Access is available for connections to the Global Crossing network at the optical level (speeds of OC-3 or higher) only. The connection at GC's PoP can also include connections to customer's colocated equipment in GC space but does not include connections to GC's local access facilities.
2. This Exhibit contains the general terms and conditions applicable to MSM Access. Separate MSM Access Schedules ("Schedules") may be attached hereto from time to time covering each separate site where MSM Access will be established. All Schedules, upon their execution by both Parties, shall be incorporated herein and shall become a part hereof.
3. Connectivity provided by Global Crossing terminates on the Limelight side of the NFDP (the "Limelight Interface") in Global Crossing Premises. The demarcation point is the NFDP in Global Crossing's POP. Limelight is responsible for handing off an acceptable interconnecting signal and installing the fiber in accordance with the requirements of this Exhibit.
4. Limelight, or Limelight's subcontractor, is responsible for
(a) bringing interconnecting fiber to Global Crossing
Premises, which shall be identified to Limelight by street
address, floor and room number (if applicable), and (b)
installing the interconnecting fiber at the Limelight
Interface using appropriate Local Access Interface Equipment.
There will be no charges associated with this from Global
Crossing unless specified in the Make-Ready Fee to enable
Limelight to accomplish the above.
5. Limelight understands and acknowledges that MSM Access is offered by Global Crossing on an "as available" basis.
6. Rates and charges for MSM Access are as set forth in Section C of these Terms and Conditions, unless otherwise modified for a specific site in the Schedule for such site.
7. Initial Capitalized Terms used herein shall have the meaning set forth in Section H hereof.
Exhibit F
B. TERM
The term of a Service with respect to each specific site shall be as set forth in the applicable Schedule and shall commence on the Service Commencement Date (the "Commencement Date"), but shall be immediately terminable by Global Crossing upon the termination, expiration or cancellation for any reason of any (i) underlying agreement between Global Crossing and any other party involving Global Crossing's continued use of the Facility, (ii) the agreement to which this Exhibit is attached, or (iii) this Exhibit. Following the expiration of the term for a Service as set forth in the Schedule for a Service, the term for such Service shall automatically renew on a [ * ] basis in accordance with the same terms and conditions specified herein, unless terminated by either Party upon sixty (60) days prior notice to the other Party.
Global Crossing shall not be liable to Limelight in any way as a result of Global Crossing's failure (for any reason) to tender possession of the Service on or before the scheduled commencement date listed in the MSM Access Schedule.
C. CHARGES AND PAYMENT
1. The charges for each Service are as follows:
a. A monthly recurring charge of [ * ] per protected circuit (four fibers) or [ * ] per unprotected circuit (two fibers) will be assessed to Limelight's account upon the scheduled commencement date. This will be for all physical fiber based cross connects.
b. A one-time Non-Recurring Charge of US [ * ] for the first 24 fiber positions on an NFDP will be assessed to Limelight's account upon Limelight's execution of the Schedule(s) for the Facility. If additional assignments are needed the NRC is [ * ] for each additional 24 fiber positions required on NFDP assignments.
c. If applicable, Limelight shall pay Global Crossing the amount set forth in each executed MSM Schedule for the cost of engineering or improvements to the Space required to be made by Global Crossing in order to accommodate Limelight's Mid Span Meet into the Space (the "Make-Ready Fee"). The Make-Ready Fee shall be payable to Global Crossing upon the scheduled commencement date.
d. Fee for Return to Pre-existing Condition: Upon termination or expiration of a Service, Limelight shall pay to Global Crossing all reasonable costs and expenses of Global Crossing to return the Premises to its pre-existing condition prior to the grant to Limelight of the rights hereunder, reasonable wear and tear excepted.
e. Dispatch Fees: [ * ](one-hour minimum) for unmanned sites during business hours (Monday-Friday, 8:00 am to 6:00 pm) and [ * ](two-hour minimum), for unmanned sites during non-business hours and nationally recognized holidays.
f. All charges are exclusive of any and all applicable taxes and regulatory surcharges (if any) which Global Crossing is permitted or obliged to pass on to Limelight.
2. Cancellation Charges: Limelight acknowledges that Global Crossing shall commence provisioning of Limelight's order for MSM Access in reliance upon Limelight's commitment for the Service. In the event of cancellation of Limelight's Service order for any reason after the scheduled commencement date, but before the payment of the non-recurring charge set forth in Section C(1) hereof, Limelight shall be liable to pay to Global Crossing, as liquidated damages, the sum of [ * ]
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
D. LIMELIGHT RESPONSIBILITIES
Limelight shall fulfill the following responsibilities:
1. Upgrade Limelight-provided fiber or equipment as necessary to support the Service in conformity with specifications for the NFDP, and/or as specified by Global Crossing, and/or as necessary to link successfully to Limelight's premises.
2. Arrange access to the building housing Global Crossing's Premises in order to bring its interconnecting fiber to Global Crossing's Premises, and perform installation of the interconnecting fiber at Global Crossing's Premises itself, or through a subcontractor identified to Global Crossing and approved by Global Crossing (not to be unreasonably withheld), at a date and time acceptable to Global Crossing, and subject to Global Crossing supervision at all times while within Global Crossing's Premises.
3. Upon Global Crossing's or its subcontractor's request, participate in any testing procedures for purposes of installation, testing, Service Commencement or maintenance.
4. Use a Service only in conjunction with Services provided by Global Crossing. Limelight may not use the MSM Access for any other purpose without the prior written consent of Global Crossing, which consent may be withheld in Global Crossing's sole discretion. Failure to obtain the prior written consent of Global Crossing shall be deemed a material breach of this Exhibit, and Global Crossing may pursue any legal or equitable remedy available to it, including immediate removal of impermissible cross-connects or interconnections and the immediate termination or suspension of this Exhibit or the underlying agreement to which this Exhibit is attached.
5. Comply, and ensure that its subcontractors, employees, agents and invitees comply, with all safety, security and access rules regarding Global Crossing's Premises, including, without limitation, any rules or regulations of the landlord in the building where the Premises are located. Global Crossing may remove any personnel of Limelight, its agents, or subcontractors not in compliance with its rules and regulations, and may prohibit access by any person at its discretion.
6. Limelight shall not cause any harm to the Facility or third parties.
7. Limelight shall not interfere in any way with Global Crossing's use or operation of the Facility or with the use or operation of any third party facilities.
8. Limelight shall be in full compliance with telecommunications industry standards, NEC and OSHA requirements, and in accordance with Global Crossing's requirements and specifications.
9. Upon termination of this Exhibit or any Schedules for any reason, all rights, title and interest in the NFDP shall remain with Global Crossing.
Exhibit F
E. MAINTENANCE
Global Crossing provides a coordinated, single point of contact maintenance function for Limelight on a 7 day x 24 hour x 365 day basis, which will be identified to Limelight. Maintenance support is: (a) between the Global Crossing network POP and the Global Crossing side of the NFDP, and (b) on the NFDP itself. Global Crossing may at its sole discretion suspend the provision of a Service (or any part thereof) for reasons of network or equipment modification, or preventive, or emergency maintenance. Limelight shall not make any alterations, changes, additions or improvements to the Facility without Global Crossing's prior written consent.
F. INSURANCE, INDEMNITY AND DAMAGE TO FACILITY
1. While this Exhibit or any Service is in effect, Limelight shall maintain in force and effect policies of insurance as follows:
a. Comprehensive General Liability Insurance, including contractual liability and broad property damage, covering personal injury or death and property damage, with a combined single limit of at least [ * ]; and
b. Worker's Compensation Insurance with limits required by the laws of the state in which the Facility is located.
The liability insurance shall name Global Crossing as an additional insured and shall be primary insurance, and Global Crossing's insurance shall not be called upon for contribution towards any such loss. Limelight's insurer shall provide Global Crossing with at least ten (10) days prior written notice of cancellation or change in coverage. All insurance required of Limelight shall be evidenced by certificates of insurance provided to Global Crossing.
2. Limelight shall be liable for and shall indemnify, defend and hold Global Crossing harmless from and against any and all claims, demands, actions, damages, liability, judgments, expenses and costs (including reasonable attorneys fees) arising from (i) Limelight's use of the Service or (ii) any damage or destruction to the Premises, Global Crossing's network or to the Facility or any property or equipment therein caused by or due to the acts or omissions, negligent or otherwise of Limelight, its employees, agents or representatives, invitees, or subcontractors.
3. THE SERVICE IS PROVIDED "AS IS". GLOBAL CROSSING MAKES NO WARRANTY, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT, AND GLOBAL CROSSING EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. Global Crossing's entire liability and Limelight's exclusive remedies against Global Crossing for any damages arising from any act or omission related to this Exhibit or any Schedule, regardless of the form of action, shall not exceed in any case the NRCs paid by Limelight hereunder.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
4. If the Facility or the Premises is damaged by fire or other casualty, Global Crossing shall give immediate notice to Limelight of such damage. If Global Crossing's landlord or Global Crossing exercises an option to terminate the lease therefore due to such damage, or Global Crossing's landlord or Global Crossing decides not to rebuild the Facility or the Premises, the Schedule shall terminate as of the date of such exercise or decision as to the affected Premises. If neither the landlord of the affected Facility nor Global Crossing exercises the right to terminate or not to rebuild, the landlord or Global Crossing, as applicable, shall repair the Facility and/or the Premises to substantially the same condition as prior to the damage, completing the same with reasonable speed. In the event that such repairs are not completed within a reasonable time, Limelight shall thereupon have the option to terminate the Schedule and such option shall be the sole remedy available to Limelight against Global Crossing hereunder relating to such failure. If the Service or any portion thereof shall be rendered unusable by Limelight by reason of such damage, the MRC for such Service shall proportionately abate for the period from the date of such damage to the date when such damage shall have been repaired for the portion of the Service rendered unusable or until the decision to not repair such Service is communicated to Limelight by Global Crossing.
G. GENERAL TERMS
1. Title. Nothing in this Exhibit or in any Schedule shall create or vest in Limelight any right, title or interest in the Service or its configuration, or in the Premises, or the Facility, other than the right to use the same during the term of the applicable Schedule under the terms and conditions of this Exhibit.
2. Compliance with Laws and Regulations. Each Party will comply with all applicable laws, regulations, rules, and ordinances. Without limiting the foregoing, Limelight shall not utilize the Facility for any unlawful purposes, nor shall Limelight assign, mortgage, sublease, encumber or otherwise transfer any right granted hereunder.
H. DEFINITIONS
As used in this Agreement, the following Initial-Capitalized terms shall have the meanings ascribed to them:
"EXHIBIT" means this MSM Access Exhibit between Global Crossing and Limelight, attached to and incorporated into the Agreement between Limelight and Global Crossing.
"LIMELIGHT" means the Limelight identified on the first page of this Exhibit.
"LIMELIGHT INTERFACE" means the Limelight side of the NFDP.
"EFFECTIVE DATE" means the date on which this Exhibit and the Applicable MSM Access Schedule is signed by Global Crossing.
"FACILITY" means the building where the Premises are located.
"GLOBAL CROSSING" means Global Crossing Bandwidth, Inc. and any company under common control, directly or indirectly, with Global Crossing which supports it in the provision of the Service.
"GLOBAL CROSSING POP" means a network Point of Presence maintained by Global Crossing. A Global Crossing POP may also incorporate Telehouse functionality, where Global Crossing determines to establish a Global Crossing POP supporting MSM Access at a Telehouse.
Exhibit F
"LOCAL ACCESS INTERFACE EQUIPMENT" means a jack or "tie down" for purposes of connecting a circuit at the Limelight Interface. This equipment is the responsibility of Limelight or its subcontractor.
"MID SPAN MEET ACCESS SERVICE" means connectivity between the Global Crossing network Point of Presence and a Network Fiber Distribution Panel ("NFDP") owned and maintained by Global Crossing on Global Crossing Premises.
"PREMISES" means the Global Crossing Premises, specified by street address, floor and room (if applicable) at which MSM Access is provided to Limelight.
"NFDP" means Network Fiber Distribution Panel supplied by Global Crossing for purposes of interfacing with Limelight-provided fiber. Selection of NFDP equipment shall be at the discretion of Global Crossing.
"PARTY" means either Global Crossing or Limelight, and "Parties" means both Global Crossing and Limelight.
"SERVICE" means Mid Span Meet Access Service.
"SERVICE COMMENCEMENT DATE" means the date when Limelight is notified that the Service ordered is being provided to the Limelight Interface.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[GLOBAL CROSSING LOGO]
AMENDMENT #8 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
APRIL 3, 2003
This is Amendment #8 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. Limelights IP Transit T1's Pricing as last set out in Amendment #7 Amended Exhibit C(a) number 1a shall be modified as follows:
FULL-PORT PRICING
MRC 1-YEAR 2-YR CHANGE CANCEL # OF T1S $/T1 INSTALLATION INSTALLATION FEE FEE -------- ---- ------------ ------------ --- --- T1 (1-10) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (11-25) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (26-50) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (51-75) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (76-100) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (101-150) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (151-200) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (201-250) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (251-300) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (301-400) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (401-500) [ * ] [ * ] [ * ] [ * ] [ * ] T1 (501+) [ * ] [ * ] [ * ] [ * ] [ * ] |
Notes:
1) All T1's must have a minimum term of at least [ * ], unless otherwise agreed in writing in advance
2) In order to qualify for a new rate on all installed circuits, LimeLight must notify Global Crossing in writing that LimeLight has qualified for a reduced price based the number of T1 circuits installed. The new price, as defined by the schedule above, will take effect in the first full billing cycle that the new level has been satisfied as long as written notification is received at least 10 business days prior to the beginning of that billing cycle. No retroactive credits will be applied.
3) Limelight agrees that pricing on existing T1 circuits can be adjusted to the new rates with a term renewal of [ * ] from the current date.
4) Limelight has been extended this pricing as they agreement to an overall IP Transit Commitment of [ * ].
5) Pricing effective to all Global Crossing Domestic US POPs. Pricing does not include local access or any applicable backhaul charges.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
3. The revised IP Transit monthly recurring charges are effective on a go forward basis for all orders placed following the execution of this Amendment #8 by Global Crossing.
4. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #8 shall remain in full force and effect.
5. This Amendment #8 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ------------------------------- ------------------------------ Barrett O. MacCheyne, William H. Rinehart, President ,Sr. Vice President North American Carrier Services Date: _____________________________ Date: ____________________________ |
[GLOBAL CROSSING LOGO]
AMENDMENT #9 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
JUNE 27, 2003
This is Amendment #9 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. LimeLight's Schedule of Ancillary Fees, as identified under the Agreement, has been updated and is attached as Amended Exhibit B.
3. LimeLight's Minimum Periodic Charge, as last set out in Section 4 of Amendment #7, shall be modified as follows:
"3.13 MINIMUM PERIODIC CHARGE: Beginning with LimeLight's June 5, 2003 Billing Cycle, LimeLight shall be liable for the following minimum charge(s) per Billing Cycle for all of the Services (the "MINIMUM CHARGE").
BILLING CYCLES MINIMUM CHARGE -------------- -------------- June2003 and each Bill Cycle thereafter [ * ] |
If LimeLight's net charges (after any available discounts hereunder) for the Services during a Billing Cycle are less than the Minimum Charge, LimeLight shall pay the shortfall. Governmental assessments and surcharges, non-recurring charges, local loop and third party and regulatory pass-through charges are not included when calculating the Minimum Charge."
4. Limelight's IP Transit Pricing as last set out in Amendment #7 as Amended Exhibit C(a) shall be modified as follows:
3. MONTHLY RECURRING CHARGES (MRC)
D. Global Crossing will charge LimeLight for a minimum of [ * ]
month whether [ * ] has been utilized or not, for all traffic,
whether committed or burstable, at a rate of [ * ] Mbps. and [
* ] Mbps burstable.
The remainder of Amended Exhibit C(a) shall remain the same.
4. All revised rates are attached hereto and made a part hereof, and so long as LimeLight signs this Amendment and returns it to Global Crossing no later than the close of business on July 3, 2003, will be effective with Limelight's Billing Cycle which commenced on June 5, 2003, for all circuits except T-1's. In the event the Amendment is not returned by said date), the new rates will be effective with LimeLight's first full Billing Cycle following the execution of this Amendment #9 by Global Crossing.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
5. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #9 shall remain in full force and effect.
6. This Amendment #9 is effective as of the date signed by Global Crossing
below. Global Crossing Bandwidth, Inc. LimeLight Networks, LLC. By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ------------------------------- ---------------------------------- Barrett O. MacCheyne, William H. Rinehart, President Sr. Vice President North American Carrier Services Date: _____________________________ Date: ____________________________ |
Amended Exhibit A
SCHEDULE OF ANCILLARY FEES
ADDITIONAL ASSOCIATION CHARGE: MONTHLY RECURRING CHARGE [ * ]
Upon new account set-up, LimeLight will be provided one (1) unique customer identifier ("ASSOCIATION ID"). Each additional Association ID requested by LimeLight and provided by Global Crossing shall be charged a Monthly Recurring Charge as stated above
LOCAL LOOP CHARGES:
All local loop monthly recurring and non- recurring (installation) charges shall be on a case by case basis, based upon vendor, mileage, location and circuit speed and term.
LOCAL LOOP CANCELLATION CHARGES:
Prior To Installation: Installation charges plus any other charges incurred in accordance with Section 3.10 of the Agreement.
Post Installation: To the number of months remaining in the term of the Local Loop times the Local Loop Monthly Recurring Charge.
Upgrades: To a larger size Local Loop between the same LimeLight locations shall not be subject to Cancellation Charges. The new Local Loop will be subject to all standard terms specified in this Agreement (including without limitation a minimum term commitment). All applicable third party local access charges incurred from the upgrade will be passed through at cost to LimeLight.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[GLOBAL CROSSING LOGO]
AMENDMENT #10 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
OCTOBER 2, 2003
This is Amendment #10 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. Limilight's initial term, last identified in the Agreement shall be extended an additional [ * ] years through Limelight's Billing Cycle ending August 1, [ * ]
3. The following Section shall be incorporated in the Agreement as Section 2.5:
2.5 ANNUAL CONTINUATION/CANCELLATION OPTION: While the term of this Agreement will be extended for [ * ] years as noted above, Limelight will have the option on [ * ]occasion each year of the Agreement, to terminate early. On the yearly anniversary of the Effective Date of this Amendment, Limelight, at their option, can choose to continue the Agreement for another year (by doing nothing), or terminate this Agreement with [ * ]written notice to the other Party. Limelight may also choose to waive this Annual Continuation/Cancellation clause at any time by locking-in the remaining term, with written notice to Global Crossing.
4. Section 3.14 of the Agreement shall be deleted in its entirety and replaced with the following:
3.14 EARLY TERMINATION CHARGES FOR SERVICE CANCELLATION: If a Service is
canceled prior to expiration of its minimum term commitment, except
if canceled by Limelight under Sections 2.5, 3.10 and/or 5.2 hereof,
or this Agreement is terminated for Global Crossing's uncured breach
as defined in 5.4, Limelight shall be liable for, and shall pay to
Global Crossing upon demand, an early termination fee in an amount [
* ] the applicable monthly per circuit and per port minimum charge
times the number of months remaining on the un-expired term
commitment or to the next annual renewal window (whether the initial
or a renewal term) for the circuit / port.
5. Limelight's IP Transit Service Schedule, last set out in the Agreement shall be deleted in its entirety and replaced with Amended Exhibit C, attached to this Amendment.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
6. Limelight's IP Transit Pricing as last set out in Amendment #7 as Amended Exhibit C(a) shall be modified as follows:
DS-3 AND ABOVE NON-RECURRING CHARGES (NRC)
MINIMUM INSTALL PORT BANDWIDTH** CHARGE ---- ----------- ------ 1 YEAR 2 YEAR CANCELLATION TERM TERM FEE ---- ---- --- T-1 1.544 Mbps [ * ] [ * ] [ * ] DS-3 10 Mbps [ * ] [ * ] [ * ] OC-3 45 Mbps [ * ] [ * ] [ * ] OC-12 160 Mbps [ * ] [ * ] [ * ] OC-48* 500 Mbps [ * ] [ * ] [ * ] Fast Ethernet* 10 Mbps [ * ] [ * ] [ * ] 1 year term: 100 Mbps; 2 year term: 10 Mbps months 1-6 and 100 Mbps for the balance Gigabit Ethernet* of the termn [ * ] [ * ] [ * ] |
The remainder of Exhibit C(a) shall remain the same.
7. Limelight's IP Transit Pricing last set out in Amendment #9, paragraph 4, shall be modified to add the following pricing.
3. MONTHLY RECURRING CHARGES (MRC)
D. Global Crossing will charge LimeLight for a minimum of [ * ]
per month whether [ * ] has been utilized or not, for all
traffic, whether committed or burstable, at a rate of [ * ]
Mbps. If Limelight utilizes between [ * ] per month, whether
committed or burstable, Limelight will be charged [ * ] Mbps
for this increment usage only, and if Limelight utilizes over
[ * ] month, then Limelight will be charged [ * ] Mbps for
this increment usage only. This pricing is based on aggregate
usage and shall include all ports except T1's and DS 1's.
8. Limelight requests subscription to Global Crossing's Metro Access Service as set out in Exhibit F, attached to this Amendment.
9. A new Exhibit entitled Customer [ * ] Trial shall be incorporated into the Agreement as Exhibit G, attached to this Amendment,
10. All revised rates are attached hereto and made a part hereof, and so long as LimeLight signs this Amendment and returns it to Global Crossing no later than the close of business on October 6, 2003, will be effective with Limelight's Billing Cycle which commenced on September 1, 2003. In the event the Amendment is not returned by said date), the new rates will be effective with LimeLight's first full Billing Cycle following the execution of this Amendment #10 by Global Crossing.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
11. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #10 shall remain in full force and effect.
12. This Amendment #10 is effective as of the date signed by Global Crossing below.
Global Crossing Bandwidth, Inc. LimeLight Networks, LLC. By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ------------------------------- ---------------------------------- Barrett O. MacCheyne, William H. Rinehart, President Sr. Vice President North American Carrier Services Date: _____________________________ Date: ____________________________ |
Amended Exhibit C
IP TRANSIT SERVICE
IP TRANSIT SERVICE permits direct access to the Internet via Global Crossing's nationwide IP network. Connectivity is between LimeLight's router and/or switch and the Global Crossing router located in a Global Crossing IP POP. This Exhibit describes the specific terms, conditions and rates applicable to the Global Crossing IP Transit Service ordered as part of the Agreement. In the event of any conflict between this Exhibit and the Agreement, the terms of this Exhibit shall control.
1. TERM.
1.1 Each circuit shall have a specific in-service term commitment of one, two or three years, which shall be separate and distinct from the term of the Agreement. Upon expiration, non-renewal or early termination of the Agreement, except if the Agreement is terminated by a Party for the other Party's uncured breach, then, notwithstanding the term stated in the Agreement, the Agreement will continue in effect with respect to the IP Transit Service as long as a circuit installed under this Exhibit remains in operation.
1.2 Unless one Party provides the other with at least [ * ] prior written notice of its intent not to renew a circuit after the circuit's minimum commitment period expires, then, unless the Parties agree otherwise in writing, a circuit shall automatically renew for an additional [ * ] period at LimeLight's existing rate at the time of the automatic renewal. The foregoing notice and renewal process shall also apply for each additional renewal period.
2. BILLING AND PAYMENT; MINIMUM COMMITMENTS.
2.1 LimeLight shall pay Global Crossing for the IP Transit Service at
the rates and charges set out in the rate schedule attached to this
Exhibit. Billing for a circuit shall commence upon the earlier to
occur of (i) 30 days following the date Global Crossing notifies
LimeLight, in writing or via electronic transmission, that the
ordered circuit capacity is available from Global Crossing
(regardless of whether or not LimeLight's Interconnection Facilities
[defined in paragraph 5.2 below] are installed and operational), or
(ii) the date the ordered circuit capacity is first utilized by
LimeLight (the "SERVICE DATE").
2.2 Monthly recurring charges ("MRC") for individual ports shall be invoiced by Global Crossing on a monthly basis in advance and non-recurring charges shall be invoiced in arrears. Any charges required to fulfill the contractual Minimum Monthly Charge of [ * ] will also be billed in arrears. If the Service Date for any circuit falls on a day other than the first day of any Billing Cycle, and the sum of the per-port MRCs does not exceed the overall contractual Minimum Monthly Charge, no pro-rated MRC charges will apply. In the event the sum of the per-port MRCs is raised beyond the contractual Minimum Monthly Charge, the initial charge to Limelight shall consist of: (i) the pro-rata portion of the applicable monthly charge covering the period from the Service Date to the first day of the subsequent Billing Cycle, and (ii) the monthly charge for the following Billing Cycle. Payment terms are set out in the Agreement
2.2.1 On the final invoice of this Agreement, or any subsequent extensions thereof, Limelight will be charged the appropriate non-recurring charges for the final month of service, as well as any charges necessary to fulfill the contractual Minimum Monthly Charge for that final month.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
2.3 The pricing in this Exhibit is limited to the IP Transit Service provided from the "on-net" nodes set out in the Global Crossing IP POP List and SONET POP list, which will be provided upon request, and which lists may, at Global Crossing's discretion, be changed from time to time. Global Crossing reserves the right, upon prior written approval by LimeLight not to be unreasonably withheld, to charge LimeLight for backhaul facilities if "off-net" routing or special Layer 2 "on-net" routing is agreed to by Global Crossing. If Global Crossing's cost in providing the IP Transit Service is increased due to circumstances beyond its reasonable control, then Global Crossing may revise the rates and charges in this Exhibit upon [ * ] written notice to LimeLight. LimeLight may cancel, without further liability (other than to pay for the circuit through the date of cancellation), any circuits subject to a rate/charge increase (other than increases resulting from governmental or regulatory assessments) upon written notice to Global Crossing given no later than [ * ] after LimeLight's receipt of the increase notice.
2.4 If a circuit is canceled after installation but prior to expiration
of its minimum term commitment, except if canceled by LimeLight (i)
under paragraph 2.3 above (ii) for Global Crossing's uncured breach,
(iii) because it is replaced with a circuit of equal or greater
charge, or (iv) due to Global Crossing's physical inability,
excluding business terms, to provide access to the Global Crossing
router from Global Crossing's Collocation space. (LimeLight shall be
required to check for availability of such Collocation space at the
time the circuit was ordered and if Collocation space wasn't
available at such time and LimeLight nonetheless proceeded with the
order, then LimeLight may not utilize this Section 2.4,(iv)),
LimeLight shall be liable for, and shall pay to Global Crossing, an
early termination fee in an amount [ * ] the applicable monthly per
circuit minimum recurring charge times the number of months
remaining on the unexpired term commitment (whether the initial or a
renewal term) for the circuit.
2.5 In addition to forecasts for other Services that may be required
under the Agreement or any attachment thereto, LimeLight must supply
Global Crossing with a [ * ] forecast, updated [ * ], for IP Transit
Service. In the event that LimeLight fails to provide a [ * ]within
[ * ] of the time set forth herein, Global Crossing shall notify
LimeLight of the delinquency of the forecast. Upon Global Crossing's
notification LimeLight shall be required to provide the forecast
within [ * ] days. The forecast must include information regarding
anticipated capacity requirements by city. The forecasts must be
provided on the[ * ]of each quarter of the calendar year, and shall
cover the [ * ]period beginning with the [ * ]of the subsequent
quarter of such calendar year (e.g. on or about [ * ]LimeLight shall
provide Global Crossing with a forecast covering [ * ]thru[ * ] In
the event LimeLight fails to submit a forecast in accordance with
this provision then LimeLight shall have waived its right to receive
any credit for the affected month under the provisions of Section 3
hereof.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
3. SERVICE LEVEL AGREEMENT
3.1 GENERAL.
3.1.1 Global Crossing is fully committed to providing a reliable, high-quality network to support IP Transit to Limelight. The Global Crossing Service Level Agreement ("SLA") defines, through Service Level Guarantees, the parameters for Service Availability, Network Availability, Latency, Packet Loss, and Service Delivery/Installation of the IP Transit Port, and the levels of credit which will be granted to Limelight on future bills if any of these guarantees is not met.
3.1.2 Certain limits apply to the credit calculations. These are set forth in
Section 3.3, below.
3.1.3 Additional conditions and exclusions apply to the SLA. These are set forth in Section 3.4, below.
3.2 SERVICE LEVEL GUARANTEES.
3.2.1 Network Availability. "Network Availability" is defined as the aggregated reachability of all end points (that is, IP Transit routers) on the Global Crossing IP Network.
3.2.1.1 Guarantee on Network Availability. The Guaranteed Network Availability ("GNA") for the Global Crossing IP Network is [ * ] monthly uptime.
3.2.2 Service Availability. "Service Availability" is defined as the ability of a Limelight to exchange IP packets with the Global Crossing IP Network via the IP Transit router port(s) at the POP(s) selected by Limelight. In addition the IP Transit port(s) will be deemed to be unavailable when the packet loss is above [ * ] for this particular IP Transit router port not for reasons beyond Global Crossing's control.
3.2.2.1 Guarantee on Service Availability. The Guaranteed Service Availability ("GSA") for the Global Crossing IP Network at the IP Transit router port is [ * ] average monthly uptime.
3.2.3 Credit Calculation on GNA and GSA. If either the GNA or the GSA is not
met, Limelight will be compensated as follows: Global Crossing will credit
Limelight [ * ] of the Monthly Service Charges (recurring) as defined in 3.3.1.1
for Fixed or Committed Bandwidth (excluding any local access charges) for every
[ * ] or any part thereof of non-availability below the guaranteed GNA or GSA.
3.2.4 Non-Availability Calculation on GNA and GSA. The percentage non-availability, as described in Section 3.2.2.1 above, is calculated on the basis of the relevant time stamps of the trouble ticket system, used at Global Crossing Customer Care Centers.
3.2.5 Latency. "Latency" is defined as the average monthly end-to-end roundtrip delay between the access routers on the Global Crossing IP Network.
3.2.5.1 Guarantee on Latency. The following parameters are the guarantees for IP Transit:
Service Part Average Roundtrip Latency (milliseconds) ------------ ---------------------------------------- IP Transit: Trans-Atlantic (London/Amsterdam -- New York) [ * ] IP Transit: European network [ * ] IP Transit: North American Network [ * ] IP Transit: Pacific (Tokyo -- Seattle/Los Angeles) [ * ] IP Transit: South America (Buenos Aires/Sao Paulo -- Miami) [ * ] |
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
3.2.5.2 Credit Calculation on Latency. If either one or more of the actual
region network averages in a given month exceed(s) the targeted metric,
Limelight will be compensated as follows: Global Crossing will credit Limelight
[ * ] of the Monthly Service Charges (recurring) as defined in 3.3.1.1 for Fixed
or Committed Bandwidth (excluding any local access charges) if the actual
monthly average roundtrip latency for one or more of the service parts exceed(s)
the Latency parameters set out above in a given month.
3.2.6 Packet Loss. "Packet loss" is defined as the loss of a packet due to transmission errors or router overload while the packet is in transit on the Global Crossing IP Network.
3.2.6.1 Guarantee on Packet Loss. Global Crossing commits to a round-trip packet loss for transmissions between Global Crossing IP Network POPs of less than or equal to [ * ] for Global Crossing's North American IP Network, and less than or equal to [ * ] for Global Crossing's IP Network worldwide.
3.2.6.2 Credit Calculation on Packet Loss. If the applicable network average for packet loss in a given month exceeds the targeted metric, Limelight will be compensated as follows: Global Crossing will credit Limelight [ * ]that is, the equivalent of[ * ] of the Monthly Service Charges (recurring) as defined in 3.3.1.1 for Fixed or Committed Bandwidth (excluding any local access charges) if the actual monthly average round-trip packet loss for one or more of the network transmissions exceed(s) the packet loss parameters set out above in a given month.
3.2.7 Service Delivery/Installation of the IP Transit Port. Service Delivery/Installation of the IP Transit Port is complete at the Service Commencement Date as defined under the MSA.
3.2.7.1 Guarantee on Service Delivery/Installation of the IP Transit Port. Service Delivery/Installation of the IP Transit Port is guaranteed as the later of (i) [ * ] business days after Global Crossing has received and accepted a signed, accurate and complete Order Form, or (ii) the RFS Date stated on the Order Form, provided in either case that Limelight has arranged access facilities and is ready for interconnection of the access facilities at Limelight Interface.
3.2.7.2 Credit Calculation. Global Crossing will issue a credit allowance equal to [ * ] of the Installation Charges paid or payable by Limelight for any installation of a IP Transit port that is not activated within the guaranteed times stated above.
3.2.7.3 No credit shall apply in respect of Service Delivery/Installation of the IP Transit port where the completed service order is modified by or at the initiative of Limelight after it is originally completed.
3.3 CREDIT LIMITS AND CALCULATIONS
3.3.1 Credits that may be made available under this SLA are not cumulative with respect to any Guarantee parameter for the same service interruption incident. If Limelight experiences network or service performance at levels below those stated in this SLA for two or more areas (e.g., Service Availability and Latency) arising from the same incident, Limelight will receive the largest of the applicable credits.
3.3.1.1 Credits will also include any charges for satisfying the Minimum Monthly Charge, if applicable. Any credits will be determined by calculating the percentage of the Minimum Monthly Charge relative to the port(s) in question by summing the total Minimum Committed Bandwidth of the port(s) in question and dividing this figure by the total of all per-port bandwidth Minimum Commitments, then multiplying this figure by the charges for satisfying the Minimum Monthly Charge.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
Example: Due to an outage of 4 hours on a GigE, Limelight is entitled to [ * ] credit against that port's commitment. As Limelight's overall commitment is [ * ], and the sum of the per-port Minimum Commitments equals [ * ] the customer would be entitled to a [ * ] credit on [ * ] overall commitment. Assuming a rate of [ * ], this would work out as follows:
[ * ] SLA Credit
3.3.2 The maximum credit allowance in any month is 100% (one hundred percent) of the Monthly Service Charge (recurring) for Fixed or Committed Bandwidth (exclusive of any local access facilities), regardless of the nature of the areas under which credit may be granted.
3.3.3 Global Crossing shall issue only one credit in any month, regardless of the time of occurrence.
3.3.4 Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges and similar additional charges.
3.3.5 Credits will be granted on the second invoice cycle after each monthly calculation period. If a credit cannot be made available within the time frame set out above, it will be made available on the next invoice or as promptly thereafter as it can be provided after the qualification for a credit and its amount are determined.
3.3.6 These credits are Limelight's exclusive remedy with respect to items covered in this SLA.
4. RATES AND CHARGES.
The applicable Monthly Recurring Charges ("MRC's"), Non-Recurring Charges ("NRC's") and other charges for IP Transit Service are set forth on subdivision (a) of this Exhibit. Early termination of any circuit is subject to an early termination fee as described in Section 2.4 hereof. All charges are invoiced in U.S. dollars and paid in U.S. dollars.
Upon signature of a Service Request (SR) by LimeLight, the Parties agree
that the SR constitutes a firm circuit order. LimeLight shall receive the
Standard Circuit pricing, Exhibit C(a), Section 1.A. or Section 1.B.,
unless the SR lists the circuit order as a Content Circuit. LimeLight
agrees in order to receive Content Circuit pricing, Exhibit C(a), Section
1.C., a circuit must have traffic ratios greater than or equal to [ * ].
For the purposes of this Agreement a Standard Circuit is defined as any IP
Transit circuit with no traffic [ * ] requirements while a Content Circuit
is defined as any IP Transit circuit with traffic [ * ] requirements.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
A cancellation fee, as listed in subdivision (a) of this Exhibit, shall apply if LimeLight cancels such ordered circuit(s) prior to the Service Date. An order cannot be cancelled on the Service Date. All cancellation requests must be in writing. An order is considered cancelled when Global Crossing receives the written notice. The written notification cannot be retroactive.
4. CIRCUIT AVAILABILITY DATE; INTERCONNECTION FACILITIES.
5.1 Upon receipt of a complete and accurate service order for a circuit, Global Crossing shall notify LimeLight of its target date for the delivery of each circuit (the "ESTIMATED AVAILABILITY Date"). Global Crossing shall use reasonable efforts to install each circuit on or before the Estimated Availability Date, but the inability of Global Crossing to deliver a circuit by such date, shall not be a breach by Global Crossing under the Agreement. If Global Crossing fails to make any circuit available within [ * ] after acceptance by Global Crossing of the service order with respect to such circuit, LimeLight's sole remedy shall be to cancel the service order which pertains to such circuit upon ten days prior written notice to Global Crossing.
5.2 Within the Global Crossing IP node where LimeLight orders circuits, Global Crossing shall provide appropriate equipment necessary to connect the circuits to LimeLight's Interconnection Facilities. If LimeLight desires to install its own equipment in one or more IP or SONET POP, and Global Crossing, in its sole discretion, agrees to such installation, the Parties shall execute a collocation agreement acceptable to both Parties. LimeLight agrees that LimeLight's Interconnection Facilities shall connect to the circuits provided by Global Crossing hereunder at the network interface points located in the IP and SONET POPs. As used herein, the term "INTERCONNECTION FACILITIES" shall mean transmission capacity provided by LimeLight or its third party supplier to extend the circuits provided by Global Crossing from a SONET or IP POP to any other location.
A. GLOBAL CROSSING ACCEPTABLE USE AND SECURITY POLICIES.
6.1 LimeLight and its customers shall comply with Global Crossing's Acceptable Use and Security Policies (collectively, the "Policy"), which Policy Global Crossing may modify at any time. The current, complete Policy is available for review at HTTP://WWW.GLOBALCROSSING.COM/AUP (Global Crossing may change the Policy and website address via electronic notice). Without limiting the Policy, generally, neither LimeLight nor its customers may use Global Crossing's network, machines, or services in any manner which:
(i) violates any applicable law, regulation, treaty, or tariff;
(ii) violates the acceptable use policies of any networks, machines; or services which are accessed through Global Crossing's network; or
(iii) infringes on the intellectual property rights of others.
Prohibited activity includes, but is not limited to, unauthorized use (or attempted unauthorized use) of any machines or networks; denial of service attacks; falsifying header information or user identification or information; monitoring or scanning the networks of others without permission; sending unsolicited bulk e-mail; maintaining an open mail relay; collecting e-mail addresses from the Internet for the purpose of sending unsolicited bulk e-mail or to provide collected addresses to others for that purpose; and transmitting or receiving copyright-infringing or illegally obscene material.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Amended Exhibit C
6.2 LimeLight and its customers are responsible for the security of their own networks and machines. Global Crossing assumes no responsibility or liability for failures or breach of LimeLight-imposed protective measures, whether implied or actual. Abuse that occurs as a result of LimeLight's systems or account being compromised may result in suspension of the IP Transit Service or account access by Global Crossing. If a security related problem is escalated to Global Crossing for resolution, Global Crossing will resolve the problem in accordance with its then-current Policy. Without limiting the Policy, generally, the following activities are prohibited:
(i) fraudulent activities of any kind;
(ii) network disruptions of any kind; and
(iii) unauthorized access, exploitation, or monitoring.
6.3 LimeLight shall be responsible for enforcing the Policy for any third parties (including its customers) accessing the Internet through LimeLight's use of the Network Services; and shall defend and indemnify Global Crossing with respect to claims related to such third party access.
6.4 Global Crossing reserves the right to suspend the IP Transit Service for LimeLight's or its customers' failure to comply with the requirements of Global Crossing's then-current Policy. Further, Global Crossing may terminate the IP Transit Service for recurring violations of the Policy by LimeLight or its customers.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
SPECIFIC SERVICE TERMS AND CONDITIONS FOR METRO ACCESS SERVICES
METRO ACCESS SERVICE. These are the specific service terms for Global Crossing's Metro Access Services (the "Services" and each service type described below, a "Service") which apply to Global Crossing Metro Access Services provided by Global Crossing, in addition to the terms of any Master Services Agreement or other Global Crossing Master Agreement (in each case a "Master Agreement") executed by the Customer.
1. SERVICE OVERVIEW
1.1 The Services incorporate the local access connection from Customer's requested interconnection point agreed with Global Crossing (the "CUSTOMER INTERCONNECTION POINT") to a Global Crossing POP ("POINT OF PRESENCE"). Customer understands and acknowledges that the Services are offered by Global Crossing on an "as available" basis. Likewise, service speeds for the Services are offered on an "as available" basis.
1.2 The Services consist of four distinct service types with different delivery options and terms as follows: Metro Dedicated Hub Service, Metro Premise Connect Service, Metro POP Connect Service, and Metro Dim Fiber Service. The Service type ordered by Customer shall be set forth on the Order Form for the Service.
1.2.1 METRO DEDICATED HUB SERVICE -- Global Crossing will deploy a dedicated transmission node, typically an OC48/STM16 system, in the Customer's premises ("CUSTOMER PREMISES") and provide service back to the Global Crossing long haul POP. The dedicated node will be used to provide fully managed SONET/SDH circuits terminating at the Customer Interconnection Point. |
1.2.1.1 The demarcation point for the Service is the Global Crossing side of the Digital or Optical Distribution Frame (DDF or ODF) at the Customer Interconnection Point.
1.2.1.2 Customer will provide, on a timely basis and without charge or
cost to Global Crossing, the necessary space, conduit and
electrical power required to terminate and maintain the equipment,
i.e. Network Terminating Equipment ("NTE"), used to provide
Service to a Customer Interconnection Point. In addition, Customer
will use commercially reasonable efforts to provide Global
Crossing, or its third-party vendor, physical access to the
Customer Interconnection Point on a timely basis and at no cost to
Global Crossing. Customer is responsible for arranging access to
any of the rights of way, conduit and/or equipment space necessary
to provide Service to the Customer Interconnection Point to
support installation, repair, maintenance, inspection, replacement
or removal of any and all facilities and/or equipment for the
Service provided by Global Crossing. Global Crossing shall also
have the right to obtain access to cable installed in
Customer-provided conduit at any splice or junction box.
1.2.1.3 Customer agrees that the equipment space and associated facilities, conduit and rights of way which it is providing are a safe place to work and are protected against fire, theft, vandalism or other casualty, and that the use thereof complies with all applicable laws, rules and regulations and with all applicable leases or other contractual agreements.
Exhibit F
1.2.1.4 Customer shall maintain in force and effect policies of insurance
as follows: (a) Comprehensive General Liability Insurance, including contractual liability and broad property damage, covering personal injury or death and property damage, with a combined single limit of at least [ * ] dollars; and (b) Worker's Compensation Insurance with limits required by the laws of the state in which the facility is located. The liability insurance shall name Global Crossing as an additional insured and shall be primary insurance, and Global Crossing's insurance shall not be called upon for contribution towards any such loss. Customer's insurer shall provide Global Crossing with at least ten (10) days prior written notice of cancellation or change in coverage. All insurance required of Customer shall be evidenced by certificates of insurance provided to Global Crossing. 1.2.2 METRO PREMISE CONNECT SERVICE -- Global Crossing will deliver managed, dedicated SONET/SDH circuits terminating at the Customer Interconnection Point via a shared Metro node located in a Global Crossing Metro or Long-haul POP. Global Crossing will provide the appropriate connectivity between the Global Crossing Metro POP and the Customer Interconnection Point. |
1.2.2.1 The demarcation point for the Service is the Global Crossing side of the Digital or Optical Distribution Frame (DDF or ODF) at the Customer Interconnection Point.
1.2.2.2 Customer will use commercially reasonable efforts to provide
Global Crossing, or its third-party vendor, physical access to the Customer Interconnection Point, on a timely basis, and at no cost to Global Crossing. Customer is responsible for arranging access to any of the rights of way, conduit and/or equipment space necessary to provide Service to the Customer Interconnection Point to support installation, repair, maintenance, inspection, replacement or removal of any and all facilities and/or equipment for the Service provided by Global Crossing. Global Crossing shall also have the right to obtain access to cable installed in Customer-provided conduit at any splice or junction box. 1.2.3 METRO POP CONNECT SERVICE -- Global Crossing will deliver managed dedicated SONET/SDH circuits terminating at the Customer Interconnection Point via a shared Metro node located in a Global Crossing Metro or Long-haul POP. Customer will provide the appropriate connectivity between the Customer Premise and either (i) the Global Crossing Metro POP or (ii) a mutually agreed upon meet-me room. |
1.2.3.1 The demarcation point for the Service is the Global Crossing side of the Digital or Optical Distribution Frame (DDF or ODF) at the Global Crossing Metro POP or meet-me room.
1.2.3.2 Customer is responsible for arranging physical access to the Customer Interconnection Point at either the Global Crossing Metro POP, or a mutually agreed upon meet-me room. This includes, but is not limited to, access to any of the rights of way, inter-building wiring, conduit and/or equipment space necessary to provide connectivity to the Global Crossing POP, and any associated installation, repair, maintenance, inspection, replacement or removal of assets. Customer, or Customer's subcontractor, is responsible for (a) bringing interconnecting fiber/cable to the Global Crossing Premise, which shall be identified to Customer by street address, floor and room number (if applicable), and (b) installing the interconnecting fiber at the Customer Interconnection Point using appropriate local access interface equipment.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
1.2.3.3 Customer will upgrade Customer-provided fiber/cable or equipment
as necessary to support the Service in conformity with specifications of the DDF or ODF, and/or as specified by Global Crossing, and/or as necessary to link successfully to Customer's premise. 1.2.4 METRO DIM FIBER CONNECT SERVICE - Global Crossing will deliver an unmanaged optical Service to the Customer Interconnection Point where Global Crossing utilizes inter-building fiber between Global Crossing's Long-haul POP and the Customer Interconnection Point. |
1.2.4.1 The demarcation point for the Service is the Global Crossing side of the Digital or Optical Distribution Frame (DDF or ODF) at the Customer Interconnection Point.
1.2.4.2 Global Crossing will provide either two (2) fibers for unprotected service, or four (4) fibers when protection is required. Global Crossing and Customer will determine the fiber parameters and associated costs, and specific requirements will be set out on the Order Form.
2. SPECIFIC SERVICE TERMS AND CONDITIONS
2.1 Unless otherwise agreed to by Global Crossing in writing, the technical specifications for the Services will conform to the technical specifications for the Global Crossing telecommunications or enhanced service ordered from Global Crossing with the Service (the "Applied Service").
2.2 Customer will use the Service only in conjunction with other Applied Services provided by Global Crossing. Customer may not use the Service for any other purpose without the written consent of Global Crossing, which consent may be withheld in Global Crossing's sole discretion. Failure to obtain the prior written consent of Global Crossing shall be deemed a material breach of these terms and conditions, and Global Crossing may pursue any legal or equitable remedy available to it, including immediate removal of impermissible cross-connects or interconnections and the immediate termination or suspension of the Service or the underlying agreement to which these terms and conditions form and appendix.
2.3 Customer shall not remove interconnection cables, associated equipment, maintenance order wire, spare circuits or conduit provided by Global Crossing to offer Metro Access Service. The interconnection cables and any associated equipment, maintenance order wire, spare circuits and conduit used by Global Crossing to provide interconnection are deemed and understood to be the property of Global Crossing during the Initial Term of the Service ordered by Customer and after the expiration or termination of that Service. Nothing in these terms and conditions shall create or vest in Customer any right, title or interest in the Service or its configuration, or in the premises, or the facility, other than the right to use the same during the Initial Term under these terms and conditions. Upon termination of a Service for any reason, all rights, title and interest in Global Crossing assets shall remain with Global Crossing. Upon the termination of a Service, Customer shall promptly return all Global Crossing assets to Global Crossing.
2.4 Customer will ensure that its subcontractors, employees, agents and invitees comply with all safety, security and access rules applying at Global Crossing facilities, including, without limitation, any rules or regulation of the landlord in the building where such facilities are located. Global Crossing may remove any personnel of Customer, its agents, or subcontractors not in compliance with its rules and regulations, and may prohibit access by any person at its discretion.
Exhibit F
2.5 Customer shall have the responsibility for obtaining and represents that it has or shall obtain all permits, franchises, licenses or approvals necessary in connection with its use of the Service, and any equipment provided by Global Crossing as part of the Service, related services and occupancy of associated facilities and premises. Upon request, Customer shall provide Global Crossing with a copy of all such permits, licenses and approvals.
2.6 At any time, each party shall, or shall procure that its affiliates, parent or subsidiaries shall, execute and deliver such further documents and do such other acts and things that are necessary or that a requesting party may reasonably request (to include, without limitation, cooperation to reconcile invoices) in order to effect fully the purposes of these terms and conditions.
2.7 Customer will use reasonable efforts to participate in any test procedures required by Global Crossing, or its subcontractor, for the purpose of installation, testing, service commencement or maintenance.
3. TERM
3.1 The initial term for each Service or circuit ordered by Customer at each specific site (in each case, the "INITIAL TERM") shall be set forth in the applicable Order Form and shall commence on the Service Commencement Date (as defined in Section 4.2.4 below), and shall be immediately terminable by Global Crossing upon the termination, expiration or cancellation for any reason of any (i) underlying agreement between Global Crossing and any other party involving Global Crossing's continued use of an associated facility or premises, (ii) the agreement to which these terms and conditions form an appendix, or (iii) the associated Applied Service (iv) these terms and conditions. Following the expiration of the term for a Service as set forth in the Order Form for a Service, the term for such Service shall automatically renew on a [ * ] basis in accordance with the same terms and conditions specified herein, unless terminated by either Party upon [ * ] days prior notice to the other Party.
4. SERVICE LEVEL AGREEMENT
4.1 Maintenance: Global Crossing provides a coordinated, single point of contact maintenance function for Customer on a 7 day x 24 hour x 365 day basis, which will be identified to Customer. Maintenance support is on a circuit level basis between Customer Interconnection Point and the applicable Global Crossing POP.
4.2 Installation: Global Crossing commits to provisioning Metro Access Service
on the mutually agreed upon ready for service date (the "RFS Date"}
(sometimes also referred to by Global Crossing as "Customer Commit Date")
following Global Crossing's acceptance of a Customer's order.
4.2.1 Requested service date(s) recorded on the Order Form do not establish the RFS Date/Customer Commit Date. Instead, the Global Crossing and Customer Project Managers for the Service shall agree upon the specific RFS Date/Customer Commit Date following order acceptance. The RFS Date excludes testing and circumstances where Customer is not ready to receive or use the circuit. The RFS Date also excludes any circumstances where turn-up is delayed due to Customer's failure to provide Global Crossing, or its third-party, with the appropriate support, such as physical access, to turn-up service. If Customer requests a change to a pending order, a new RFS Date/Customer Commit Date will be established.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit F
4.2.2 Changes to, or cancellations of, pending orders are accepted within the absolute discretion of Global Crossing; if accepted, Customer shall be liable to pay Global Crossing the following: (a) costs incurred in reliance upon Customer's order, including any third party charges incurred by Global Crossing in reliance of Customer's order, (b) 100% of the installation charge, and (c) associated order change or order cancellation charges.
4.2.3 If the provisioning intervals stated in Section 4.2.1 are not met, then Global Crossing will issue a credit to Customer in accordance with the installation guarantee contained in the service level agreement ("SLA") for the associated Applied Service.
4.2.4 On or before the RFS Date, or any amended RFS Date, Global Crossing will test the Service at each site and declare its availability for Customer use. The Service Commencement Date for each Service ordered will be the date upon which Global Crossing notifies the Customer (by writing or electronic transmission) that the Service is available for Customer use, unless Customer within forty-eight (48) hours notifies Global Crossing of its non-acceptance on the basis that agreed technical specifications for the Service have not been met. In that case, further tests of the Service will be conducted and a new Service Commencement Date will be agreed upon, provided that any Customer use of a Service for other than testing purposes following notice of non-acceptance will be deemed to constitute acceptance of that Service.
4.3 Service Level Agreement: Global Crossing Metro Access circuits will be subject to the same SLA as the associated Applied Service ordered from Global Crossing. For the avoidance of doubt, where the SLA for the Applied Service provides for both an 'end to end' or 'prem to prem' SLA and a 'POP to POP' SLA, the SLA applying to service on a Metro Access circuit shall be the 'POP to POP' SLA.
5. PRICING.
5.1 In addition to (a) a one-time installation charge ("INSTALLATION CHARGE") and (b) monthly recurring charges ("MONTHLY RECURRING CHARGES"), as set forth on the Order Form, Customer shall also be responsible for Miscellaneous Charges. For purposes of this section, Miscellaneous Charges include any charges for special construction requirements, expedite requests, inside wire extensions, or the like agreed to between Customer and Global Crossing.
5.2 Customer acknowledges that the charges set forth on the Order Form are based upon the best current information available to Global Crossing. Charges set forth in an Order Form for a specific Service apply only to that Service, additional Services ordered by Customer shall be subject to separate quotation and agreement with Customer.
5.3 Billing for Services provided under these terms and conditions shall commence on the Service Commencement Date (as defined in Section 4.2.4 above), notwithstanding whether or not any 'extended demarc' arranged by the Customer has been completed at that time. Before the original RFS Date/Customer Commit Date for the circuit, customer may, upon prompt written notice to Global Crossing, postpone the scheduled implementation date for that location. If customer postpones any scheduled implementation date for more than fifteen (15) days beyond the original RFS Date/customer commit date, then, the Service Commencement Date for the Service shall be the earlier of (i) the sixteenth (16th) day following the original RFS Date/Customer Commit Date and (ii) the date upon which Customer starts using the Service, and Global Crossing shall be entitled to commence billing for those local access circuits on that date (regardless of whether or not the customer has commenced the related Applied Service.)
Exhibit G
LIMELIGHT CUSTOMER [ * ] TRIALS
1 GENERAL
1.1 In order to facilitate sales of Limelight's services, Global Crossing will agree to co-sponsor [ * ] trial periods for new Limelight customers on a limited basis, and pending mutual concurrence between Limelight and Global Crossing.
2 SCOPE OF THE TRIAL
2.1 Upon concurrence regarding a customer [ * ] Trial, Global Crossing will agree to sponsor [ * ]of the offered trial period to the Limelight customer, to a maximum of [ * ] Global Crossing service. Any offered [ * ] beyond this period will be the sole responsibility of Limelight.
3 [ * ] TRIAL PERIOD
3.1 Limelight will notify Global Crossing in writing of the expected Start Date and Stop Date of the [ * ] Trial. Global Crossing will concur with Limelight, or suggest an alternate date(s), based on expected delivery of the port, expected customer acceptance, customer test plans, and/or other considerations.
3.1.1 The Stop Date may not be more than twenty-eight (28) calendar days from the date the circuit was provisioned by Global Crossing.
3.2 Limelight may terminate the [ * ] Trial (terminating service) at any time prior to the Stop Date by notifying Global Crossing in writing. If Limelight does not provide written notification to Global Crossing of the intent to terminate the [ * ] Trial (terminate service) billing will commence on the Stop Date, as indicated.
3.3 In the event Limelight chooses to terminate the [ * ] Trial (terminating service), the port will be disconnected by Global Crossing as soon as possible thereafter, and Limelight's Customer will cease using the port immediately. With prior written approval for costs from Limelight, any defined and documented third-party expenses incurred by Global Crossing to provision the port will be charged to Limelight. (Third-party expenses include, but are not limited to, local access recurring charges, purchase of a card, any special card charges and/or special port charges.)
3.4 If Limelight chooses to continue the service beyond the [ * ] Trial, the Term of the port (per Exhibit C, Section 1) will begin effective the Stop Date, and all standard service charges shall apply going forward.
3.5 In the event the Stop Date, and commencement of standard billing, falls in the middle of Limelight's billing cycle, the port will be pro-rated and billed separately for the remainder of the billing cycle. [ * ] Trial ports will not be considered in satisfying monthly contractual minimum commitments, and all usage will be treated as burstable traffic. In the following billing cycle, the port shall be [ * ] with the other Limelight IP Transit ports, and standard per-port MRCs will go into effect.
4 RESTRICTIONS ON AVAILABILITY
4.1 Only new ports will be considered for [ * ] Trials. Incremental traffic on existing Limelight ports will not be considered for [ * ] Trial evaluation. Upgrades to existing Limelight ports as a result of a new customer may be considered on an individual case basis.
4.2 Any proposed ports are subject to standard capacity availability considerations.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit G
5 OTHER TERMS AND CONDITIONS
Although standard IP Transit SLA's will be in effect on any ports during a
[ * ] Trial, no credits will be issued in the event of any SLA
violation(s). Global Crossing will report on SLA performance during the [
* ] Trial as with standard IP Transit ports.
* CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[GLOBAL CROSSING LOGO]
AMENDMENT #11 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, LLC
JANUARY 16, 2004
This is Amendment #11 to the Carrier Service Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING") and LimeLight Networks, LLC ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. LimeLight Networks, LLC merged into LimeLight Networks, Inc. a Delaware corporation, effective August 29, 2003 with such documentation on record in the Office of the Delaware Secretary of State, filed August 29, 2003. Therefore, LimeLight Networks, LLC shall be known as LimeLight Networks, Inc. on a go forward basis.
3. Limelight requests subscription to Global Crossing's Wavelength Service as set out in Exhibit H, attached to this Amendment.
4. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #11 shall remain in full force and effect.
5. This Amendment #11 is effective as of the date signed by Global Crossing
below. Global Crossing Bandwidth, Inc. LimeLight Networks, Inc. By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ----------------------------- ------------------------------ Barrett O. MacCheyne, William H. Rinehart, President Sr. Vice President North American Carrier Services Date: ___________________________ Date: ____________________________ |
Exhibit H
SPECIFIC SERVICE TERMS AND CONDITIONS
FOR
GLOBAL CROSSING WAVELENGTH SERVICE
These are the service terms and service level agreement for Global Crossing Wavelength Service, which apply to Global Crossing Wavelength Service provided by Global Crossing, in addition to the terms of any Master Services Agreement ("MSA") or other Global Crossing master agreement (in each case a "MASTER AGREEMENT") executed by the Customer.
SPECIFIC SERVICE TERMS AND CONDITIONS
1.1 Global Crossing Wavelength Service is a fiber-optic, transponder based, point-to-point circuit between Global Crossing Points of Presence ("POP to POP"). Global Crossing Wavelength Service enables end-to-end transportation of a high capacity 2.5 Gb/s or 10 Gb/s signal between two specified Sites (POP to POP).
1.2 Global Crossing Wavelengths will be sold in pairs, so the Customer will receive a minimum of two fibers, one carrying the transmit wavelength and one carrying the receive wavelength, between point A and point Z. In this case, the two fibers will be carried in the same cable and there is no protection in case of a fiber cut. Global Crossing provides no protection on the optical layer or electrical layer.
1.3 The Service is unprotected. A protection or auxiliary path is achieved through the purchase of alternate circuits. In the event Customer purchases a second Wavelength for auxiliary path purposes, Customer shall be responsible for managing the auxiliary path to ensure protection.
1.4 Wavelengths will be provisioned using a technology called Dense Wavelength Division Multiplexing (DWDM).
1.5 The Global Crossing Network Operations Center provides support for Global Crossing Wavelength Service twenty-four (24) hours a day, seven (7) days a week. The Global Service Center acts as the single point of contact for Customer to report problems, using a telephone number provided to Customer. Guidelines for management of reported troubles will also be supplied to Customer.
1.6 The Service is offered in two types: (i) Annual Lease for a term of years, with a Monthly Service Charge, and (ii) Pre-Paid Lease for a term of years. For each circuit ordered, the selected type of service, pricing and length of term shall be specified by the Customer on this Exhibit or the Order Form. At the end of the Initial Term, renewal procedures shall be as set forth in the MSA.
1.7 The Customer shall pay Global Crossing for the Wavelength Service at the rates and charges set out in this Exhibit or the Order Form. Billing for a Wavelength circuit shall commence according to the MSA.
1.7.1 "Add/Drop" rearrangements on the same physical fiber path as the existing Service can be requested by Customer. If acceptable to Global Crossing, the add/drop rearrangement shall be priced on a mutually agreeable individual case basis. 1.7.2 Global Crossing represents that the pricing set forth on the in this Exhibit or the Order Form is based upon information available to Global Crossing at time of contracting. For Annual Lease customers only, if Global Crossing's costs in providing the Service increase due to circumstances beyond its reasonable control, or if it elects to pass through any government or regulatory assessments relating to its provisioning of the Services, then it may revise the prices in the in this Exhibit or the Order Form upon [ * ] days written notice to Customer. Customer may cancel any circuit(s) subject to a price increase (other than increases resulting from governmental or other regulatory assessments) upon written notice given during the above [ |
* ] day period, provided Customer remits to Global Crossing all payments due prior to termination. 1.1.1
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
1.8 Customer acknowledges that specific Wavelength availability on the Global Crossing Network must be confirmed internally by Global Crossing through its Network Operations Center. Availability is confirmed to Customer only by Global Crossing's signature on this Amendment or the Order Form for the specific Service ordered. 1.9 The tail circuit or other connection to the Customer's equipment, whether located at the Customer's premise or a "telehouse," is the Customer's responsibility. Equipment co-location at a Global Crossing facility, if available, shall be established through a separate contractual agreement. Except as specifically set forth in any agreement for equipment co-location between Global Crossing and Customer, Global Crossing shall have no obligation in respect of any installation, maintenance, repair or servicing of the Customer's electronic or optronic equipment to be used in connection with the Service. 1.10 If a circuit is canceled prior to the expiration of the minimum term commitment (or any extension thereof), except if canceled for Global Crossing's uncured breach, Limelight shall be liable for, and shall pay to Global Crossing upon demand, an early termination fee in an amount [ * ] to the applicable monthly per circuit minimum charge times the number of months remaining on the unexpired term commitment (whether the initial or a renewal term) for the circuit. Limelight may replace an existing circuit prior to the expiration of the term commitment for such circuit, without termination liability, provided that the replacement capacity is available and that the new circuit: (i) is of equal or greater revenue value; (ii) has a term commitment of not less than [ * ] and (iii) is ordered within thirty (30) days of the disconnect order for the original circuit. Limelight will be responsible for payment of any applicable installation charges for the replacement circuit. If the replacement capacity ordered is not available, then Limelight will be liable for the early termination fees on the disconnected circuit. Limelight will be responsible for any third-party, pass-through or cancellation charges on the disconnected circuit. |
TECHNICAL SPECIFICATIONS/CONSIDERATIONS
2.1 The Service is designed to comply with ETSI and ITU-T recommendations. Customer's signal must be framed in accordance with ITU-T recommendation G957 for 2.5Gbit/s and G691 for 10 Gbit/s.
2.2 Global Crossing's 2.5 Gbit/s and 10 Gbit/s optical channels are designed
and maintained per manufacturer's specifications for power and
environmental requirements. All of Global Crossing's 2.5 Gbit/s and 10
Gbit/s circuits shall operate with a measured Bit Error Rate ("BER") of 1
x 10 (-12) or less [or BBER of 2.0E --6, or less].
2.3 The Service includes provision of fixed bandwidth between two Global Crossing Optical Digital Frames (ODFs), handover to the Customer at the Global Crossing POP via an appropriate method, and support and maintenance. The demarcation point ("Customer Interface") for the Service is the Global Crossing ODF located within the Global Crossing POP. Interface connector type for interfacing with Global Crossing's ODF will be defined by Global Crossing as part of the installation process. Between the selected Global Crossing POPs, the Service is accomplished across circuit segments on the Global Crossing Network. Selection of the nominal central wavelength(s) carrying the Customer's optical signals through the Global Crossing Network will be done by Global Crossing.
2.4 The Customer acknowledges that (i) the circuits used for the Wavelength Services are not protected by a restoration protocol within or external to the SONET frame structure, (ii) Global Crossing will not provide Wavelength Services using conventional SONET TDM add/drop multiplexers using a BLSR or UPSR or linear restoration protocol within or external to the SONET frame structure, and (iii) the interoperability of the individual circuits is dependent upon the joint interconnection of the interface between Global Crossing's DWDM system and the Customer's source systems and facilities. The Customer's source systems will operate within the conventional 1310nm and 1550nm passbands, using Short Reach, Intermediate Reach, or Long Reach optic, as defined in Telcordia GR-253-CORE. Except with the Customer's prior written consent, Global Crossing will provide the Wavelength Services solely over Global Crossing's facilities-based WDM
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
network and fiber, equipment or other DWDM service(s) owned or controlled by Global Crossing and its affiliates. 2.5 The Wavelength Services will be configured as follows: 2.5.1 The Service is an opaque product with limited overhead transparency. This means that the customer's signal must meet the SONET/SDH frame and rate. The signal will have a section, line and path overhead associated with it. Global Crossing will have complete ownership of the section overhead. Global Crossing will reserve the right to write, modify or terminate any or all of the overhead byte in the section overhead. The line and path overhead will be transported transparently through the Global Crossing network. 2.5.2 DWDM Transmission System: DWDM transmission equipment for each unprotected channel (2.488Gb/s and 9.953Gb/s), such as DWDM Terminals, in-line amplifiers, regenerators and optical layer cross-connect equipment necessary to provide the Wavelength Services; and 2.5.3 2.488Gb/s and 9.953Gb/s TDM equipment used in conjunction with the WDM system: transparent TDM transmission equipment for each channels capable of use on each route. Equipment such as DWDM transponders, regenerators and wavelength converters to provision circuits. 2.6 Global Crossing will cooperate with the Customer's installation of fiber, cable and fiber termination equipment within POPs, including but not limited to providing the Customer (including its representatives and contractors) all necessary access to the end-point POPs at reasonable times and in a reasonable manner following reasonable advance notice consistent with the access that it may provide to other similarly situated customers whose presence may be permitted to collocate at its POPs; provided however, that with [ * ] prior written notice, Global Crossing will provide the Customer with accompanied access at any time; and provided further, however, that in the event of an emergency, Global Crossing will exercise commercially reasonable efforts to provide accompanied access at any time of the day upon [ * ] hour's notice (such notice being intended for Global Crossing to ensure that an escort is available). 2.7 The Customer's wavelengths will be part of a multi-wavelength DWDM transmission system carrying wavelengths for other customers and Global Crossing's own circuits. 2.8 Fiber patch cords and optical attenuators used on receivers will be the responsibility of the owner of the equipment to ensure that optical signal levels are within specification for the owner's equipment The appropriate type of optics for the application will depend on the optical link engineering conducted jointly by Global Crossing and the Customer on an individual case basis. 2.9 Acceptance testing activities will be coordinated with Customer by Global Crossing. Tests will be performed according to ITU recommendations, M.2100 and/or M.2101. The circuit will be declared Ready For Service upon positive test results. Test criteria are zero BER over a twenty-four (24) hour period. Global Crossing will notify Customer, on a circuit by circuit basis, of circuit availability following successful completion of acceptance test. |
SERVICE LEVEL AGREEMENT
3.1 Service Commitment 3.1.1 Subject to the "Credit Conditions and Exclusions" set forth in Section 3.4, below, and the provisions on "Planned Outages, and Other Potential Service Disruptions at Customer End," set forth in Section 3.6, below, Global Crossing will provide a credit where the Service does not satisfy the stated guarantees in Sections 3.2 and 3.3, below, on "Circuit Availability" and "Installation," respectively. 3.2 Circuit Availability |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
3.2.1 Performance. Guaranteed availability for the Service is monthly availability of [ * ]. This figure shall be derived from continual Global Crossing measurements of the performance of the Global Crossing Network. 3.2.2 Measurement. Circuit availability is a measure of the relative amount of time during which a circuit is available for Customer use. A Global Crossing 2.5Gbit/s or 10 Gbit/s circuit will be deemed unavailable (that is, experiencing an "Outage") for the relevant period if the circuit experiences a complete loss of service, or if BER falls below 1 x 10 (-12) [or BBER of 2.0E --6]. Each Outage is calculated in one-hour increments measured from the time that Global Crossing receives notice from the Customer of circuit unavailability (established by a "Trouble Ticket") until circuit availability is restored by Global Crossing. 3.2.3 Credit Calculation for Annual Leases. The credit per segment of the circuit is computed in accordance with the Table below. |
CIRCUIT UNAVAILABILITY % CREDIT OF MO. SERVICE CHARGE CIRCUIT AVAILABILITY (%) (HOURS) ATTRIBUTABLE TO THAT SEGMENT 100.0% - 99.5% [ * ] [ * ] 99.4% - 98.0% [ * ] [ * ] 97.9% - 96.5% [ * ] [ * ] 96.4% - 90.0% [ * ] [ * ] 89.9% - 75.0% [ * ] [ * ] Less than 75.0% [ * ] [ * ] |
Each credit is calculated on a monthly cumulative per segment basis, and is calculated as a deduction from the Monthly Service Charge (recurring) attributable to the affected segment. 3.2.4 Credit Calculation for Pre-Paid Leases. An Implied Monthly Service Charge ("Implied MSC") is determined for each circuit ordered on a Pre-Paid Lease basis. The formula for determining the Implied MSC is as follows: Implied MSC = Total Pre-Paid Lease Fee Attributable to the Circuit ---------------------------------------------------- Total Number of Months in the Term 3.2.5 The calculations set forth in Section 3.2.4, above, are then made with respect to Outages on segments of a circuit ordered on a Pre-Paid Lease basis, utilizing the Implied MSC as a surrogate for Mo. Service Charge. 3.3 Installation 3.3.1 Installation Provisioning 3.3.1.1 "POP to POP". Global Crossing commits to provision a "POP to POP" circuit on the mutually agreed RFS Date (sometimes also referred to by Global Crossing as the "Customer Commit Date") following Global Crossing's acceptance of a Customer order. (Orders are accepted by Global Crossing's authorized signature on this Amendment or the Order Form. 3.3.1.2 Requested service date(s) recorded in this Exhibit or the Order Form do not establish the RFS Date/Customer Commit Date. Instead, the Global Crossing and Customer Project Managers for the Service shall agree upon the specific RFS Date/Customer Commit Date following order acceptance. 3.3.1.3 The mutually agreed RFS Date/Customer Commit Date for Provisioning a "POP to POP" circuit is typically within thirty (30) calendar days of order acceptance. This objective excludes testing and circumstances where the Customer is not ready to receive or use the circuit. |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
3.3.2 Credit Calculation. If the installation times stated above are not met, Global Crossing will issue a credit according to the following schedule:
IF DELIVERY DATE % CREDIT OF IS INSTALLATION EXCEEDED BY CHARGE 1-5 days [ * ] 6 days - 10 days [ * ] 11 days - 30 days [ * ] Greater than 31 days [ * ] |
3.4 Credit Conditions and Exclusions
3.4.1 Outage credits will be issued by Global Crossing only after Customer notifies Global Crossing of an Outage, Global Crossing has confirmed such Outage, and the Customer requests an SLA credit in writing. The Customer is responsible for providing to Global Crossing a written request for an evaluation of any suspected Service Outage within [ * ] business days of a suspected failure. Global Crossing will require up to [ * ] business days to validate the existence and responsible party for any such Service problem. Written request for an SLA credit must be received within [ * ] days of the SLA violation. 3.4.2 Credits will be calculated in connection with, and will apply to Global Crossing segments of a circuit only. No credits are granted for any local loop or tail circuits or charges whatsoever, nor for the charges or fees that arise with another entity and that are passed through to Customer by Global Crossing (if any). Credits are not available for any usage-based charges. 3.4.3 Credits are calculated after deduction of all discounts and other special pricing arrangements, and are not applied to governmental fees, taxes, surcharges and similar additional charges. 3.4.4 Credits provided for hereunder are calculated on a monthly cumulative basis with respect to any segment of a covered circuit that is affected. All credits are calculated on the basis of a thirty (30) day calendar month. Global Crossing shall issue only one aggregated credit for qualifying occurrences in any month, regardless of the time of occurrence. In no event may the credits provided for hereunder exceed the Mo. Service Charge, or Implied MSC, attributable to an affected segment in any month. 3.4.5 With respect to the installation SLA, the SLA applies to POP to POP installation, no credits shall be provided for local loop circuits, and no credits shall be provided for circuits where the completed service order is modified by or at the initiative of Customer after the service order is originally completed. Installation credits are likewise not available for circuits to be installed in whole or in part by a local telephone company or other unaffiliated local provider. 3.4.6 These credits are Customer's exclusive remedy with respect to items covered in this SLA; under no circumstance shall an Outage be construed as a breach of this Appendix by Global Crossing. 3.4.7 The credits set forth above are not available in the event of any of the causes listed in Sections 3.4.7.1 through 3.4.7.7, inclusive, and the administration of the credits is limited as set forth in Sections 3.4.7.8 through 3.4.7.11, inclusive. 3.4.7.1 Lapses in services associated with new installations or orders for circuit reconfigurations, that is, both before Global Crossing has received notice that Customer has accepted the new or reconfigured Service and until forty-five (45) calendar days after the Service is first utilized by Customer; |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
3.4.7.2 Lapses in service resulting from the Customer's premises equipment or equipment of a Customer's vendor, or from local loop facilities provided to connect the Customer to Global Crossing's Network; 3.4.7.3 Force Majeure events as defined in the MSA; 3.4.7.4 Problems associated with any act or omission of Customer or any third party, including but not limited to, Customer's agents, contractors or vendors; 3.4.7.5 Scheduled or emergency maintenance. (Global Crossing will use reasonable commercial efforts to minimize Service disruption, see Section 2.6, below, and upon written request of Customer will notify Customer in writing of scheduled maintenance a reasonable time in advance of such scheduled maintenance.) 3.4.7.6 Required undersea repairs; 3.4.7.7 Interruptions resulting from a Global Crossing disconnect for non-payment or other default or breach by Customer under the MSA or this Appendix. 3.4.7.8 For leased circuits, all SLA credits shall be credited on the next monthly invoice for the affected circuit after receipt of Customer's written request for credit. 3.4.7.9 For Pre-Paid Leases, all SLA credits shall be issued as Service Credits after receipt of Customer's written request for credit. Service Credits can be used by the Customer only to purchase new wavelength circuits on the Global Crossing network, or extend the term of existing Customer circuits. Service Credits shall accrue on a monthly basis, and must be used within twenty-four (24) months of issuance. |
3.4.7.10 The total of all Outage Credits applicable to or accruing in any given month for a Wavelength circuit shall not exceed the amount payable by Customer to Global Crossing for that same month for such Wavelength circuit. For Pre-paid leases, the monthly credit shall not exceed the Implied MSC, as defined in Section 3.2.4.
3.4.7.11 SLA provisioning timeframes and credits only pertain to circuits
between Global Crossing On-Net POPs that are equipped with applicable DWDM equipment and capacity. 3.5 Time to Repair Objective 3.5.1 Time to Repair ("TTR") is defined as the time to isolate, fix and close out Customer-initiated trouble reports, with return of Circuit to Customer, as tracked by the Global Crossing trouble ticket system. (Trouble tickets kept open at the request of Customer, after clearance of a fault, shall not be included in this calculation.) 3.5.2 Global Crossing has a TTR objective on the Global Crossing Networks as follows: a yearly average of [ * ] per occurrence, with no single occurrence greater than [ * ]. No credits apply in connection with performance against this objective; however, the Customer receives indirect credits via the Circuit Availability SLA metric. 3.6 Planned Outages, and Other Potential Service Disruptions at Customer End 3.6.1 Planned Outages may occasionally be necessary for Global Crossing to carry out essential maintenance or network upgrades. Global Crossing will use commercially reasonable efforts to keep Planned Outages to a minimum. |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
3.6.2 Except in an emergency, or a Force Majeure condition as described in the MSA, Global Crossing and Customer will use commercially reasonable efforts to follow the following procedures with respect to Planned Outages: 3.6.2.1 Global Crossing will provide Customer with at least [ * ] notice of any planned work that will affect the availability of service. 3.6.2.2 Customer will confirm to Global Crossing within [ * ] that the Planned Outage proposals are acceptable. 3.6.2.3 Where possible Global Crossing will provide Customer with Planned Outage proposals and confirmation details should be exchanged by fax. 3.6.2.4 Where possible Global Crossing will make temporary alternative arrangements during a Planned Outage to avoid an interruption in the Customer's Service. 3.6.3 Global Crossing will give notice of Planned Outages to the named contacts within Customer. 3.6.4 Customer shall use commercially reasonable efforts to give Global Crossing advance notice of any event of which Customer is aware at its end -- for example, building work necessitating disconnection of power -- which will disrupt the Service. 3.6.5 Neither Global Crossing nor Customer shall have any liability to the other for damages or credits in connection with this Section 3.6, provided that each of Global Crossing and Customer has acted reasonably under the circumstances. |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
EQ = EQUINIX FACILITY; MMR = FIBER MEET-ME-ROOM
ALL CIRCUITS MUST BE INSTALLED BY [ * ]. IN SERVICE DATE BEGINS ON [ * ] UNLESS GLOBAL CROSSING HAS NOT COMPLETED THE CIRCUIT.
[ * ] TERM ON ALL CIRCUITS BEGINS ON THE INDIVIDUAL "IN SERVICE DATE" FOR EACH CIRCUIT. EACH CIRCUIT AUTOMATICALLY RENEWS ON [ * ] BASIS.
------------------------------------------------------------------------------------------------------------------------------------ BANDWIDTH ADDRESS A CITY ACCESS SOLUTION ADDRESS Z CITY ACCESS SOLUTION MILEAGE [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ [ * ] |
*TBD - To be determined - Limelight has the option of choosing from a OC3, OC12, or 2.5Gb wave and has the option of upgrading the circuit for a one-time NRC of [ * ] during the initial [ * ] term.
**CPA Customer Provided Local Access. Global Crossing shall not provide an Access Solution for [ * ] location.
PHASE 2
ALL CIRCUITS MUST BE INSTALLED BY [ * ]. IN SERVICE DATE BEGINS ON [ * ] UNLESS GLOBAL CROSSING HAS NOT COMPLETED THE CIRCUIT.
[ * ] TERM ON ALL CIRCUITS BEGINS ON THE INDIVIDUAL "IN SERVICE DATE" FOR EACH CIRCUIT. EACH CIRCUIT AUTOMATICALLY RENEWS ON A ON A [ * ] BASIS.
------------------------------------------------------------------------------------------------------------------------------------ BANDWIDTH ADDRESS A CITY ACCESS SOLUTION ADDRESS Z CITY ACCESS SOLUTION MILEAGE MRC NRC ------------------------------------------------------------------------------------------------------------------------------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ------------------------------------------------------------------------------------------------------------------------------------ |
GLOBAL CROSSINGS STANDARD INTERVAL TIME-FRAME IS [ * ])DAYS.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit H
PHASE 3
LIMELIGHT HAS THE OPTION OF ORDERING ADDITIONAL 2.5 GIG WAVE CIRCUITS AT THE DS0 MILE RATE OF:
MRC NRC [ * ] [ * ] [ * ] [ * ] |
*SAID DSO RATES ARE SUBJECT TO A [ * ] MONTHLY MINIMUM CHARGE.
ALL CIRCUITS MUST BE ORDERED [ * ]
ACCESS WILL BE PROVIDED AT NO ADDITIONAL COST IF AVAILABLE AND SHALL FULFILLED
BY GLOBAL CROSSING'S ON-NET SERVICES ONLY. [ * ] TERM ON ALL CIRCUITS AND THE
TERM BEGINS ON THE INDIVIDUAL "IN SERVICE DATE" FOR EACH CIRCUIT.
THESE RATES SHALL APPLY TO TIER 1 CITIES, INCLUDING: [ * ].
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
(GLOBAL CROSSING LOGO)
AMENDMENT #12 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, INC.
MAY 7, 2004
This is Amendment #12 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), and Limelight Networks, Inc. ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. Section 3.6 under the Agreement, as amended, shall be deleted in its entirety and replaced with the following:
"3.6 Global Crossing agrees to take commercially reasonable efforts to invoice Limelight either (i) via facsimile, (ii) via electronic mail, or (iii) to make such information available via uCommand on or about the fifth Business Day after the close of each Billing Cycle for the Services and for any other sums due Global Crossing (the "INVOICE")."
3. Section 3.7 under the Agreement shall be revised to replace and include the statement regarding invoice delivery as follows:
"The Parties agree that (i) the Invoice date will be the same day
that the Invoice is sent to Limelight via the method(s) described in
Section 3.4, and (ii) the Invoice will be sent on a Business Day and
followed by a confirmation copy sent by first class U.S. mail."
4. Limelight's Minimum Periodic Charge, identified in Section 3.13 of the Agreement and last revised in Amendment #9, shall be deleted in its entirety and replaced as follows:
"3.13 MINIMUM PERIODIC CHARGE: Beginning with LimeLight's May 1, 2004
Billing Cycle, Limelight shall be liable per [ * ] for the aggregate
[ * ] associated with the IP Transit Service as set out in Exhibit
C(a)."
5. The NOTICES provision of the Agreement, identified as Section 17 thereof, as amended, shall be revised as follows:
If to Limelight: Limelight Networks, Inc. 2220 W. 14th Street Tempe, Arizona 85281-6945 Attn: Gary Baldus Tel #: (602) 850-5006 Fax #: (602) 580-5206
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
6. Limelight's IP Transit Pricing, identified as Exhibit C(a) in the Agreement and last revised in Amendment #11, shall be revised as follows:
COMMITTED BURSTABLE VOLUME BANDWIDTH BANDWIDTH CHANGE CANCELLATION COMMITMENT RATE PER Mbps RATE PER Mbps FEE * FEE PORT PER PORT (MRC) (MRC) NRC NRC NRC --------------------------------------------------------------------------------------- GIGABIT ETHERNET [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CHANGES TO PORTS REQUIRING NEW PORT INSTALLATION WILL BE ASSESSED
INSTALL CHARGES AS APPROPRIATE FOR A NEW PORT.
- Each Gigabit Ethernet port shall have a [ * ] per-port minimum commitment and a [ * ] per-port traffic average (aggregate burst traffic divided by active ports). Limelight's aggregate minimum commitment across [ * ] ports shall be [ * ] and shall not fall below, except if ports are disconnected as noted below.
- Global Crossing reserves the right, upon thirty (30) days notice, to disconnect any port that falls below the average, except that Global Crossing shall not disconnect any port where that port is the last or only port in a particular location, with the exception of Phoenix as noted below, unless agreed to between the Parties.
- Limelight will be entitled to maintain at least [ * ] Gigabit Ethernet ports in Phoenix, provided that the aggregate traffic for each port shall be at [ * ] Mbps per port.
- Limelight may relocate an existing Gigabit Ethernet port prior to the expiration of the term commitment for such port, subject to availability, and the relocated Gigabit Ethernet port shall be required to maintain the same per-port commitments as set out above. Limelight will be liable for third-party charges, if any, for any relocated port.
- Global Crossing will not entertain any [ * ] with Limelight for the duration of the [ * ].
- The rates and charges contained in this Amendment #12 shall apply to all of Limelight's existing IP Transit ports, except for existing DS-1 ports, located in the U.S., and supercede any other IP Transit pricing, except for DS-1 pricing, in effect for Limelight. Limelight may also add additional ports in the U.S. at the rates contained herein.
- As a result of the revised pricing herein, item #7 in Amendment #10 shall be deleted in its entirety.
7. All revised rates are attached hereto and made a part hereof and, so long as Limelight signs this Amendment and returns it to Global Crossing no later than the close of business on May 11, 2004, shall be effective on a retroactive basis with Limelight's Billing Cycle that commenced on May 1, 2004. In the event this Amendment #12 is not returned by said date, the new rates shall be effective with Limelight's first full Billing Cycle following the execution of this Amendment #12 by Global Crossing.
8. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #12 shall remain in full force and effect.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, INC.
By: /s/ Barrett O. MacCheyne By: /s/ William Rinehart ------------------------------------ ------------------------------------ Barrett O. MacCheyne William Rinehart Senior Vice President President North American Carrier Services Date: Date: |
AMENDMENT #13 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, INC.
AUGUST 12, 2004
This is Amendment #13 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), and Limelight Networks, Inc. ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. Limelight's Wavelength Service, last identified in Amendment #11, shall be revised to include an additional circuit as follows:
BANDWIDTH LOCATION A LOCATION Z CIRCUIT TERM MRC NRC COMMITMENT -------------------------------------------------------------------------------- [ * ] 600 W. 7th St. 801 S. 16th Street [ * ] [ * ] [ * ] (Equinix) (GC POP) Los Angeles, CA Phoenix, AZ |
If Limelight cancels the above circuit at any time prior to the expiration of the minimum circuit term commitment, except if cancelled for Global Crossing's uncured breach, Limelight shall be liable for and shall pay to Global Crossing upon demand an early termination fee in the amount of [ * ].
3. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #13 shall remain in full force and effect.
4. This Amendment #13 shall be effective as of the date signed by Global Crossing below.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, INC.
By: /s/ Barrett O. MacCheyne By: /s/ William H. Rinehart ------------------------------------ ------------------------------------ Barrett O. MacCheyne William H. Rinehart Senior Vice President President North American Carrier Services Date: Date: |
[GLOBAL CROSSING LOGO]
AMENDMENT #14 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, INC.
JANUARY 31, 2005
This is Amendment #14 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), and Limelight Networks, Inc. ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. In the event of a change of control in Limelight, Global Crossing shall
allow Limelight, upon written request to Global Crossing, to alter the term
of the Agreement to be [ * ]. In addition, Limelight shall also have the
right to terminate the Agreement, without any [ * ], provided that the date
of termination is [ * ] beyond the date of this Amendment. If a change of
control in Limelight occurs during the first [ * ] from the date of this
Amendment, and Limelight requests the Agreement be terminated, Limelight
shall be liable for and shall pay to Global Crossing an amount equal to the
[ * ] and [ * ] for [ * ] up to and including the [ * ]. Notwithstanding
the foregoing, Limelight shall be liable for payment of [ * ], if any, for
the entire term commitment for any and all disconnected circuits or ports.
3. Global Crossing's notice information, as set out in Section 17 of the Agreement, shall be revised as follows:
If to Global Crossing: Global Crossing Bandwidth, Inc.
1120 Pittsford-Victor Road Pittsford, New York 14534 Attention: Vice President, Global Voice Services Facsimile #: (585) 381-7235 with a copy to: Global Crossing Bandwidth, Inc. 1120 Pittsford-Victor Road Pittsford, New York 14534 Attention: Manager, National Contract Administration Facsimile #: (585) 381-7235 |
4. Limelight's IP Transit Service pricing, identified as Exhibit C(a) in the Agreement and last revised in Amendment #12, shall be revised as follows:
3. MONTHLY RECURRING CHARGES (MRCS)
D. Each Gigabit Ethernet port shall have a [ * ] per-port minimum commitment and a [ * ] per-port average across all ports. Limelight's aggregate minimum commitment across all ports shall be [ * ]. The following pricing is based on aggregate usage levels and shall apply to all existing and future ports with the exception of T1's and DS1's.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AGGREGATE BANDWIDTH USAGE ACROSS ALL PORTS MRC PER Mbps ------------------------------------------------------------------ [ * ] [ * ] ------------------------------------------------------------------ [ * ] [ * ] ------------------------------------------------------------------ [ * ] [ * ] ------------------------------------------------------------------ [ * ] [ * ] ------------------------------------------------------------------ |
[ * ]
[ * ]
The pricing structure above shall be applicable worldwide on the Global Crossing network, including but not limited to the U.S. and European regions. This pricing does not apply to Asia and South America.
E. Global Crossing reserves the right, upon thirty (30) days notice, to disconnect any port that falls below the [ * ] or the [ * ] over[ * ] Billing Cycles, except that Global Crossing shall not disconnect any port where that port is the last or only port in a particular location, with the exception of Phoenix as noted below, unless agreed to between the Parties.
5. The following terms specific to Limelight's IP Transit Service were set out in Amendment #12 and shall be incorporated into Section 3 of the IP Transit Pricing, Exhibit C(a) to the Agreement, as follows:
F. Limelight will be entitled to maintain at [ * ] in Phoenix, provided that the aggregate traffic for each port shall be [ * ] per port.
G. Limelight may relocate an existing Gigabit Ethernet port prior to the expiration of the term commitment for such port, subject to availability, and the relocated port shall be required to maintain the same per-port commitments as set out above. Limelight shall be liable for third-party charges, if any, for any relocated port.
All other IP Transit terms and/or pricing not specifically modified in this Amendment #14 shall remain in place.
6. The following terms shall be added to Limelight's Wavelength Service Schedule, identified as Exhibit H in the Agreement, and shall apply only to circuits ordered after November 1, 2004.
- Limelight shall have the option to cancel a circuit prior to the expiration of such circuit's minimum term commitment (or any extension thereof), without liability for early termination fees, provided such circuit has been installed for at [ * ] and further provided that (i) a replacement circuit is ordered within thirty (30) days of the cancellation order for the existing circuit, (ii) the replacement circuit is of equal or greater revenue value, and (iii) the replacement circuit has a term commitment of not less than [ * ] Limelight shall be responsible for payment of any applicable installation charges for the replacement circuit and Limelight shall also be responsible for third-party pass-through or cancellation charges on the local loops associated with the disconnected circuit.
- Global Crossing will initiate installation and billing for the Route after each of the respective [ * ] or [ * ] is completed. The [ * ] segments [ * ]. The [ * ]
- [ * ] shall be built as independent networks with no overlap, so as to create east/west redundancy for Limelight.
- The per-mile DSO rate shall be [ * ] for all new [ * ] waves. Installation charges shall be reviewed by Global Crossing on a per-order basis. All new wave orders shall be subject to route availability.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
- Site-Specific Waves: Pricing of the associate routes is (long and loops):
ADDRESS (A) ADDRESS (Z) MILES $0.000235 LOOPS ------------------------------------------------------------------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] ADDRESS (A) ADDRESS (Z) MRC ------------------------------------------------------ Phase 2 [ * ] [ * ] [ * ] [ * ] [ * ] |
7. The following rates shall be added to Limelight's Colocation Services Schedule, identified as Exhibit B to the Agreement, and shall apply to any new colocation sites.
MONTHLY RECURRING CHARGES
[ * ] [ * ] ------------------------------------------------------------------------------- [ * ] [ * ] ------------------------------------------------------------------------------- |
8. Limelight requests subscription to Global Crossing's Dark Fiber Service and may order as desired where available, as set out in Exhibit I, attached to this Amendment.
9. Global Crossing agrees that any review of any[ * ]or [ * ]related issue will be conducted by the [ * ]team and will also include the [ * ]and a [ * ].
10. The revised IP Transit rates contained herein shall be effective as of
[ * ].To effectuate this Effective Date, and for purposes of clarification,
the Parties agree that Limelight shall be entitled to a [ * ] herein for
the period from [ * ] to the [ * ] and such credit amount shall be applied
only against the billing for the specific wavelength circuits ordered, as
set out above. [ * ] will be handled through Global Crossing's standard
credit process and shall be issued in the form of a [ * ], to be signed by
both Parties, once the [ * ] has been calculated, and applied by Global
Crossing as a [ * ] Limelight's Invoice for the said wavelength circuits.
Any rates for newly subscribed products shall be effective on the date of
execution of this amendment by Global Crossing.
11. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #14 hall remain in full force and effect.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, INC. By: /s/ Greg Spraetz By: /s/ William H. Rinehart ----------------------------- ------------------------------------- Greg Spraetz William H. Rinehart Senior Vice President President and Chief Executive Officer Date: Date: ---------------------------- ----------------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
[GLOBAL CROSSING]
SERVICE TERMS AND SLA FOR DARK FIBER
Dark Fiber Lease. These are the service terms and service level agreement for the lease of Global Crossing Dark Fiber which apply to the provision of Dark Fiber by Global Crossing, in addition to the terms of any Master Services Agreement, Carrier Services Agreement or other Global Crossing master agreement (in each case a "MASTER AGREEMENT" or "MSA") executed by Customer and Global Crossing. Initial capitalized terms not otherwise defined in these terms and conditions shall have the meanings given those terms in the Master Agreement.
SECTION 1. DESCRIPTION OF SERVICE
1.1 Service Description. Global Crossing Dark Fiber Service is the provision on a leased basis of fiber optic cable pairs on Global Crossing's Network not carrying a signal ("FIBER"). For the avoidance of doubt, Global Crossing Dark Fiber Service is not comprised of SONET ring-protected private lines, point-to-point bi-directional circuits at OCN speeds or any other configuration.
1.2 Unless otherwise agreed to by Global Crossing, the Fiber provided by Global Crossing shall be single mode Fiber, installed and operating in conformity with generally accepted standards utilized by Global Crossing for its own Network.
1.3 Customer understands and acknowledges that the provision of Dark Fiber by Global Crossing is offered by Global Crossing on an "as available" basis and is not available in all regions. All requests for Dark Fiber are subject to individual quotation and order acceptance by Global Crossing.
SECTION 2. LEASE OF DARK FIBER AND PAYMENT
2.1 The Service is offered in two types: (i) annual lease for a term of years, with a Monthly Service Charge ("MRC") payable, or (ii) a pre-paid lease for a term of years with a prepaid lease amount payable ("PREPAID LEASE CHARGE"). The term of years in either case is the "INITIAL TERM"). For each Fiber pair ordered by Customer, the following shall be set out in the Order form for the Service:
- selected type of service (annual lease or prepaid lease)
- pricing
- length of Initial Term
- details of demarcation points and specific solution/requirements at those demarcation points
- any miscellaneous routing or service requirements
2.2 At the end of the Initial Term (or any extension) for a Fiber lease (in
each case the "LEASE EXPIRATION DATE"), the term for that Fiber lease will
automatically be extended on the same terms for an additional period of
[ * ] months unless:
2.2.1 either Party notifies the other in writing at least thirty (30) days before the Service Expiration Date that the lease shall not auto-renew, and shall terminate on the Service Expiration Date, in which case Global Crossing shall terminate the provision of the Fiber on the Service Expiration Date; or 2.2.2 Customer notifies Global Crossing in writing at least thirty (30) days before the Service Expiration Date that Customer wishes to renew the lease on a [ * ] basis only, in which case (a) regardless of any other pricing provisions agreed with Customer, the rates and charges for the lease shall be increased to a [ * ] rate with effect from the Service Expiration Date, and (b) such [ * ] lease may be terminated by either Party upon thirty (30) days' written notice to the other at any time following the Service Expiration Date. |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
SECTION 3. CUSTOMER RESPONSIBILITIES
Customer shall:
3.1 Comply and procure that its employees and agents comply with all applicable laws and all reasonable requests, demands or requirements (whether in writing or not) communicated by Global Crossing as to safety, the use of the Fiber, or access to any Global Crossing facility;
3.2 In the interests of safety in accordance with applicable good engineering practice, comply and procure that its customers, employees and agents comply promptly with any request by Global Crossing to disconnect from all or any part of the Fiber or switch off any of Customer's equipment or that of its customers (including, but not limited to, any lasers) and not to reconnect or switch on such equipment until instructed by Global Crossing that it is safe to do so;
3.3 Follow any procedures notified to Customer by Global Crossing regarding the use of the Fiber;
3.4 Ensure that its use and any of its other activities relating to the Fiber shall not interfere with use by Global Crossing or any third party of the Global Crossing Network or with telecommunication transmissions by Global Crossing or any third party through the Global Crossing Network;
3.5 Where Global Crossing so requires, procure access for Global Crossing (or its respective employees or agents) to any Customer facilities for the purpose of testing or repairs or where such access is required to enable Global Crossing to comply with its obligations hereunder;
3.6 At the request and expense of Global Crossing, use all reasonable endeavours to take such steps as are necessary to safeguard Global Crossing's rights in its Network (including the Fiber);
3.7 Not substitute, remove, add, alter, amend or expand any cable, wiring, equipment, hardware, software, or Fiber comprising part of or connected directly to Global Crossing's Network without first obtaining Global Crossing's written agreement;
3.8 Except as expressly agreed in writing with Global Crossing, not have any access to Global Crossing's Network and Customer shall not, under any circumstances, move, relocate, disturb, handle or otherwise come into contact with (whether directly or indirectly) the Fiber, the duct(s) in which the Fiber is located, or any other portion of Global Crossing's Network; and
3.9 Be solely responsible for obtaining and maintaining any and all permits, licences, governmental or regulatory approvals which are required for Customer's use of the Fiber and/or any telecommunications equipment used in connection therewith.
SECTION 4. TAKEOVER OF FIBER
4.1 Customer is solely responsible for ordering and maintaining all facilities, equipment, and services necessary to light and use the Fiber provided by Global Crossing and for all costs and expenses incurred in relation thereto, including without limitation, the installation, testing, maintenance and operation of any equipment and facilities. Global Crossing and Customer shall agree the specific technical solution and demarcation points for all Fiber to be provided by Global Crossing. Depending on the solution agreed in each case, Customer may be required to purchase additional Global Crossing services such as Collocation Service, Interconnect Access Service or Metro Access Service. Unless otherwise expressly agreed in writing, Global Crossing does not provide, order, design or co-ordinate or otherwise arrange for any inside wiring or 'extended demarc' either at Global Crossing facilities or Customer's premises.
4.2 Global Crossing commits to provisioning Fiber on the ready for service date
(the "RFS DATE") agreed between Customer and Global Crossing. The Parties
agree that take over of the whole Fiber may occur in stages on a segment by
segment basis (as set out in the Order Form) in accordance with this
Section 4. Requested service date(s) recorded on the Order Form do not
establish the RFS Date, instead, the Global Crossing and Customer Project
Managers for the Service shall agree upon the specific RFS Date following
order acceptance. If Customer requests a change to a pending order, a new
RFS Date will be established.
4.3 Changes to, or cancellations of, pending orders are accepted within the absolute discretion of Global Crossing; if accepted, Customer shall be liable to pay Global Crossing the following: (a) costs incurred in reliance upon Customer's order, including any third party charges incurred by Global Crossing in reliance of Customer's order, and (b) 100% of the installation charge.
4.4 On or before the RFS Date, or any amended RFS Date, Global Crossing will test the Fiber and declare its availability for Customer use. The Service Commencement Date ("SERVICE COMMENCEMENT DATE") for Fiber ordered will be the date upon which Global Crossing notifies Customer (by writing or electronic transmission) that the Fiber is available for Customer use, unless Customer within forty-eight (48) hours notifies Global Crossing of its non-acceptance on the basis that the agreed technical specifications for the Fiber have not been met. In that case, further tests of the Fiber will be conducted and a new Service Commencement Date will be agreed upon, provided that any Customer use of Fiber for other than testing purposes following notice of non-acceptance will be deemed to constitute acceptance of that Fiber or segment.
4.5 Any Break-Outs requested by Customer shall be subject to separate negotiation and agreement between the Parties.
SECTION 5. PAYMENT
5.1 Unless otherwise agreed, all charges for Fiber (including any non-recurring installation charges and either (i) MRC or (ii) Prepaid Lease Charge), are payable within [ * ] days of the Service Commencement Date, regardless of whether or not any 'extended demarc' arranged by Customer has been completed at that time or whether or not Customer is ready to use the Fiber on that date.
5.2 In addition to a one-time installation charge and either (i) MRC or (ii) Prepaid Lease payment amount (as set forth on an Order Form), Customer may also be responsible for miscellaneous charges including any charges for special construction requirements, expedite requests, or the like, agreed between Customer and Global Crossing.
5.3 Unless otherwise agreed, all Fiber provided to Customer in Europe pursuant to these terms and conditions shall be provided by Global Crossing Ireland Limited. Accordingly, Customer acknowledges and agrees that regardless of the Global Crossing entity which has entered into the Master Agreement with Customer, all charges in respect of Fiber provided to Customer in Europe, shall be invoiced by, and payable by Customer to, Global Crossing Ireland Limited.
SECTION 6. MAINTENANCE
6.1 Maintenance. Global Crossing shall perform or cause to be performed all operation, administration and maintenance with respect to Fiber provided to Customer. Global Crossing shall use reasonable efforts to cause the Fiber to be maintained in efficient working order, using Global Crossing's standard maintenance procedures. In the event of disruption of service due to Force Majeure or other emergency, Global Crossing shall cause service to be restored as quickly as reasonably practicable, taking such measures as are reasonably necessary for restoration. The Global Crossing Network Operations Center (NOC) provides support for Global Crossing customers twenty-four (24) hours a day, seven (7) days a week. The NOC acts as the single point of contact for Customer to report problems, using a telephone number provided to Customer. Guidelines for reporting and management of service issues will be provided separately to Customer.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
SECTION 7. RESALE OF FIBER
7.1 Customer shall not resell the Fiber, or any part thereof or allow other carriers to interconnect with Global Crossing's Fiber Distribution Panels. For the avoidance of doubt, nothing in this Section 7 shall restrict Customer's right to grant to third parties the right to service capacity or similar rights deriving the use of the Fiber in the normal course of its business provided always:
7.1.1 that the terms of such resale shall confer no greater rights on any third party and shall impose on such third party no less onerous obligations than those set out in these terms and conditions; and 7.1.2 that Customer shall not resell the right to use the whole of any or all of the individual Fibers comprising the Fiber. |
SECTION 8. ADDITIONAL TERMS APPLYING TO FIBER SITUATED IN THE UNITED KINGDOM.
The following additional terms shall apply in respect of any Fiber which is leased by Global Crossing to Customer and which is situated within the United Kingdom.
8.1 Notwithstanding any provisions to the contrary in the Master Agreement, Customer agrees to pay all rates and other tax liabilities, attributable to the Fiber which may be assessed or charges by a rating authority or other governmental or taxing authority in the United Kingdom, and accepts that the Fiber forms part of Customer's hereditament for rating purposes.
8.2 In the event that it is reasonably necessary to do so because of work on or
incidents effecting a railway based route, Global Crossing shall have the
right having given reasonable prior notice to Customer (i) to provide
Customer Fibers on an alternate route provided that there is a minimum
interruption in, and minimum degradation of, the service to Customer; and
(b) to cease to provide the Fiber to Customer, provided that Customer shall
be entitled to a refund of any amounts paid in advance by Customer for the
provision of the Fiber LESS an amount attributable to the periods for which
the Fiber has been provided to Customer, and Global Crossing shall use its
best endeavors to assist Customer in obtaining an alternative service.
8.3 The Parties agree that Customer will not have any access under these terms and conditions or otherwise to any land owned by Network Rail Infrastructure Limited or any other land in the United Kingdom which is used for railway operational purposes.
8.4 Inability to obtain access to the Fiber as a result of the operation of railway rules or regulation in the United Kingdom shall constitute a "Force Majeure" event for the purposes of the Master Agreement.
SECTION 9. SERVICE LEVEL AGREEMENT
9.1 Installation: Global Crossing commits to provisioning the Fiber on the mutually agreed RFS Date. If Global Crossing fails to provision the Fiber upon the mutually agreed RFS Date, then Global Crossing will issue a credit according to the following schedule:
IF DELIVERY DATE IS EXCEEDED BY % CREDIT --------------------------------------------------------------------------------------------- 1-5 days [ * ] of Installation charge invoiced to Customer --------------------------------------------------------------------------------------------- 6-10 days [ * ] of Installation charge invoiced to Customer --------------------------------------------------------------------------------------------- 11-30 days [ * ] of Installation charge invoiced to Customer --------------------------------------------------------------------------------------------- Greater than 31 days [ * ] of Installation charge invoiced to Customer --------------------------------------------------------------------------------------------- |
9.2 For the purpose of this Section, no credit shall be payable in respect of delays caused by Customer and/or circumstances where Customer is not ready to receive or use the Fiber, or due to Customer's failure to provide Global Crossing, or its third-party, with the appropriate support, such as physical access, to install the Fiber.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
SECTION 10. SITE-SPECIFIC PRICING
10.1 Limelight shall have the option to order dark fiber as follows:
INSTALLATION LOCATION TERM MRC NRC -------------------------------------------------------------------------------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
Contrary to Section 2.2 herein, at the end of the Term for the above sites, the Term shall automatically be extended on the same terms on a [ * ] basis.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
AMENDMENT #15 TO BANDWIDTH/CAPACITY AGREEMENT
LIMELIGHT NETWORKS, INC.
FEBRUARY 27, 2006
This is Amendment #15 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), and Limelight Networks, Inc. ("LIMELIGHT" or "PURCHASER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. The following terms specific to Limelight's IP Transit Service shall be incorporated into Section 3 of the IP Transit Pricing, Exhibit C (a) to the Agreement, as follows:
AGGREGATE BANDWIDTH USAGE ACROSS ALL PORTS MRC PER MBPS ---------------- ------------ [ * ] [ * ] [ * ] [ * ] |
- TIER RATE ADJUSTMENTS: Global Crossing will honor tier rate adjustments when requested by Limelight when traffic volume is rated at a [ * ] with a [ * ] and nears the next [ * ]. Requests to adjust tier rates must be sent in writing by Limelight and received by Global Crossing no later than [ * ] after receipt of invoice in which those adjustments are to be applied. For example, [ * ] would be adjusted to [ * ] and Limelight would be charged the lower amount.
- All new 10Gbps Ethernet IP Transit ports ordered shall have a term commitment of not less than [ * ]. Each existing 10 Gbps Ethernet port shall have a [ * ] bandwidth commitment on available capacity which is part of the [ * ] commitment. Existing Circuits can be renewed or disconnected on a [ * ] basis at the end of the initial term with proper notice. For each new 10 Gbps Ethernet port, Customer shall have a [ * ] bandwidth commitment on available capacity for the [ * ] year and a [ * ] bandwidth commitment on available capacity for the [ * ] year of service which is part of the [ * ] commitment. For example, if Limelight committed to [ * ] ports the total commitment would be [ * ] for first year pricing.
- In the event of Change of Control at Limelight, Limelight may cancel circuits after a minimum of [ * ] from install date with [ * ] written notice to Global Crossing.
- A one-time billing sign on bonus for IP Transit will be applied to Limelight's March invoice in the amount of [ * ].
***All other IP Transit terms and/or pricing not specifically modified in this Amendment #15 shall remain in place.
- Global Crossing shall use its best commercial efforts to provide 10Gbps Ethernet service in the following locations, and will notify Limelight of 10Gbps Ethernet availability on a per POP basis:
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
STATE CITY ADDRESS ----- ---- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
3. The following terms shall be added to Limelight's Wavelength Service Schedule, identified as Exhibit H in the Agreement, and shall apply only to circuits ordered after the execution of this Amendment #15.
- 2.5 GBPS RATE AND TERM: The per-mile DSO rate shall be [ * ] for all North American orders, $0 NRC with a [ * ] minimum on the on initial 2.5Gbps wavelengths purchase. Installation charges shall be reviewed by Global Crossing on a per-order basis. All new wave orders shall be subject to route availability. For any circuits ordered prior to this Amendment #15 with a rate below [ * ], Limelight shall receive the lower rate. All MRC and NRC charges for Metro Loops are waived for on net locations as identified in Attachment 2, attached to this Amendment. Notwithstanding the forgoing, on net locations identified in Attachment 2, with the exception of the city pairs already identified in Attachment 1, are subject to capital approval and existing transmission capability to support the wavelength service for all levels of capacity for all on net routes. All new 2.5Gbps wavelengths ordered shall have a term commitment of not less than [ * ]. All CURRENT 2.5G waves will bill at the new rate on next invoice cycle and are not subject to [ * ].
- 2.5 GBPS UPGRADE: Commencing January 1, 2007 and subject to availability, Limelight shall have the option to upgrade the 2.5Gbps, without liability for early termination fees on the then current 2.5G wavelength term, provided that (i) a replacement 10 Gbps wavelength is ordered within thirty (30) days of the cancellation order for the existing circuit (ii) the replacement circuit has a term commitment of not less than [ * ]. Upon upgrade, initial 2.5 wavelengths may be disconnected at any time.
- 10 GBPS RATE AND TERM: 10Gbps MRC shall be equal to [ * ] on all 10Gbps ordered. All Metro Loop MRC and NRC charges will be waived for on net locations, identified in Attachment 2, attached to this Amendment. Notwithstanding the forgoing, on net locations identified in Attachment 2, with the exception of the city pairs already identified in Attachment 1, are subject to capital approval and existing transmission capability to support the wavelength service for all levels of capacity for all on net routes. Global Crossing shall use its best commercial efforts to install the 10Gbps within ninety (90) days from date of order. All new 10Gbps wavelengths ordered shall have a term commitment of not less than [ * ] years. In locations where 10G orders have been placed, additional 2.5G orders may be acquired at the [ * ] price subject to network availability and CAPEX approval.
- Minimum MRC's may be reduced to as low as the actual mileage charge with a payment of mutually agreed upon NRC.
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
- In the event of a Change of Control in Limelight, Global Crossing
shall allow Limelight, upon written request to Global Crossing, to
alter the term of the Circuits to be [ * ] after [ * ]. If a
change of control in Limelight occurs during the first [ * ] from
the date from the date of installation, and Limelight requests the
Circuit be terminated, Limelight shall be liable for and shall pay
to Global Crossing an amount equal to the [ * ] for all months up
to and including the [ * ]. Notwithstanding the foregoing,
Limelight shall be liable for payment of [ * ], if any, for the
[ * ] for any and all disconnected circuits or ports.
- Limelight may convert from the [ * ] option to a prepaid option by paying a [ * ]. The [ * ] will be equal to the [ * ]. A [ * ] discount shall be applied to the remaining months if payment is received by [ * ]. A [ * ] discount shall be applied to the remaining months if payment is received by [ * ].
- At the conclusion of the circuit term, each circuit will renew on
[ * ] basis at Limelight's then current contracted rates.
- Global Crossing will not commence billing on any particular partial segment unless the [ * ] [ * ] have been installed.
- A one-time billing sign on bonus for wavelengths will be applied to Limelight's March invoice in the amount of [ * ].
4. Limelight's Wavelength Site Specific pricing shall be revised to include the rates attached to this Amendment as Attachment 1.
5. Global Crossing will use commercially reasonable efforts to provide current order for [ * ].
6. Limelight does not guarantee orders will be placed for all locations where pricing has been provided.
7. The revised monthly recurring IP Transit charges shall be effective from Limelight's Billing Cycle which commenced February 1, 2006. The revised monthly recurring Wavelength charges shall be effective Limelight's next full Billing Cycle which commences March 1, 2006.
8. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #15 hall remain in full force and effect.
9. This Amendment #15 shall be effective as of the date signed by Global Crossing below.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, INC. By: [ILLEGIBLE] By: /s/ William H. Rinehart ----------------------------- ---------------------------------- William H. Rinehart President Date: Date: --------------------------- -------------------------------- |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
SITE SPECIFIC WAVES
Circuit Circuit Circuit Capacity Loc A Loc Z Qty Reqstd MRC Qty. 2 Qty. 3 Qty. 4 --------------------------------------------------------------------------------------------------- 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 2.5G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 1) [ * ] 2) We will agree, within [ * ] upon request after 1/1/2007, to upgrade 2.5G wave(s) to 10G wave at 2x 1st 2.5G wave MRC for [ * ]. 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] 10G [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
METRO LOOP LOCATIONS
ZIP NORTH AMERICA ADDRESS STATE CODE CLLI V&H NPA-NXX ------------- ------- ----- ---- ---- --- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
METRO LOOP LOCATIONS
ZIP NORTH AMERICA ADDRESS STATE CODE CLLI V&H NPA-NXX ------------- ------- ----- ---- ---- --- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
METRO LOOP LOCATIONS
ZIP NORTH AMERICA ADDRESS STATE CODE CLLI V&H NPA-NXX ------------- ------- ----- ---- ---- --- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
METRO LOOP LOCATIONS
ZIP NORTH AMERICA ADDRESS STATE CODE CLLI V&H NPA-NXX ------------- ------- ----- ---- ---- --- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
METRO LOOP LOCATIONS
ZIP NORTH AMERICA ADDRESS STATE CODE CLLI V&H NPA-NXX ------------- ------- ----- ---- ---- --- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
EUROPE ADDRESS POSTAL CODE ------ ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
EUROPE ADDRESS POSTAL CODE ------ ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
EUROPE ADDRESS POSTAL CODE ------ ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
UK ADDRESS POSTAL CODE -- ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
UK ADDRESS POSTAL CODE -- ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
UK ADDRESS POSTAL CODE -- ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
UK ADDRESS POSTAL CODE -- ------- ----------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
ASIA -- PACIFIC ADDRESS --------------- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
EXECUTION COPY
ATTACHMENT 2
METRO LOOP LOCATIONS
LATIN AMERICA -- CARIBBEAN ADDRESS -------------------------- ------- [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
(GLOBAL CROSSING LOGO)
AMENDMENT #16 TO BANDWIDTH / CAPACITY AGREEMENT
LIMELIGHT NETWORKS, INC.
AUGUST 24, 2006
This is Amendment #16 to the Bandwidth/Capacity Agreement between Global Crossing Bandwidth, Inc., on behalf of itself and its affiliates that may provide a portion of the services hereunder ("GLOBAL CROSSING"), and LimeLight Networks, Inc. ("LIMELIGHT" or "CUSTOMER"), dated August 29, 2001, as amended (the "AGREEMENT").
1. Except as otherwise stated, capitalized terms used herein shall have the same meaning as set forth in the Agreement.
2. The following shall be incorporated into the Agreement as Section 26:
"26. Customer shall comply with Global Crossing's Acceptable Use and Security Policies (the "Policy"), as set forth in Section 6 of Exhibit C (IP Transit Service Schedule) in Amendment #10, and such Policy shall apply to the entire Agreement. For clarity, the Policy shall apply to all current and future Services provided under the Agreement."
3. Limelight's IP Transit Pricing, identified as Exhibit C(a) in the Agreement and last revised in Amendment #15, shall be revised according to the table below.
AGGREGATE BANDWIDTH USAGE ACROSS ALL PORTS MRC PER Mbps IN GIGABITS ---------------- ------------ [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] [ * ] |
4. All other IP Transit terms and/or pricing not specifically modified in this Amendment shall remain in place. In addition, the revised IP Transit rates contained herein shall remain in place for a [ * ] period following the effective date of this Amendment. Therefore, no [ * ] shall take place within a [ * ] period after the effective date of this Amendment.
5. In the event that a customer is extended a [ * ] for IP Transit Service at
[ * ], then Global Crossing agrees to [ * ], even if such proposal is
within the [ * ] as set out in item #4 above.
6. Provided Customer signs this Amendment and returns it to Global Crossing no later than the close of business on August 25, 2006, the revised IP Transit rates included herein shall be effective as of September 1, 2006 (August 2006 usage). In the event this Amendment #16 is not returned by said date, the revised rates shall be effective with Customer's first full Billing Cycle following the execution of this Amendment by Global Crossing.
7. The balance of the Agreement and any executed amendments or addenda thereto not modified by this Amendment #16 shall remain in full force and effect.
8. Each individual executing below on behalf of a Party hereby represents and warrants to the other Party that such individual is duly authorized to so execute, and to deliver, this Amendment.
9. This Amendment #16 shall be effective as of the date signed by Global Crossing below.
GLOBAL CROSSING BANDWIDTH, INC. LIMELIGHT NETWORKS, INC.
By: /s/ Greg Spraetz By: /s/ Gary Baldus -------------------------------- -------------------------------- Greg Spraetz Gary Baldus Senior Vice President Vice President of Infrastructure Date: Date: |
*CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
Exhibit 10.11
EXECUTION VERSION
LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
MAY 18, 2006
TABLE OF CONTENTS
Page ---- 1. PURCHASE AND SALE OF SERIES B PREFERRED STOCK....................... 1 1.1 Sale and Issuance of Series B Preferred Stock............... 1 1.2 Closing Delivery............................................ 1 1.3 Funding Commitment Date..................................... 1 1.4 Use of Proceeds; Repurchase; Escrow......................... 2 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY....................... 3 2.1 Organization, Good Standing and Qualification............... 3 2.2 Capitalization.............................................. 3 2.3 C Corporation; Subsidiaries................................. 5 2.4 Authorization............................................... 5 2.5 Valid Issuance of Stock; Offering.......................... 5 2.6 Government Consent.......................................... 6 2.7 Litigation.................................................. 6 2.8 Intellectual Property....................................... 6 2.9 Compliance with Other Instruments........................... 9 2.10 Agreements; Action.......................................... 9 2.11 No Conflict of Interest..................................... 10 2.12 Rights of Registration and Voting Rights.................... 11 2.13 Title to Property and Assets................................ 11 2.14 Financial Statements........................................ 11 2.15 Changes..................................................... 11 2.16 Taxes....................................................... 13 2.17 Labor Agreements and Actions................................ 13 2.18 Confidential Information and Invention Assignment Agreements............................................... 14 2.19 Permits..................................................... 14 2.20 Corporate Documents......................................... 14 2.21 Employee Benefit Plans...................................... 14 2.22 Disclosure.................................................. 15 2.23 Insurance................................................... 16 2.24 Environmental and Safety Law................................ 16 2.25 Real Property Holding Corporation........................... 16 2.26 Investment Company Act of 1940.............................. 16 2.27 Brokers or Finders.......................................... 16 2.28 Section 83(b) Elections..................................... 16 2.29 Obligations of Management................................... 16 2.30 Peering Relationships....................................... 16 2.31 Outstanding Debt............................................ 17 2.32 April 2006 Revenue.......................................... 17 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.................... 17 3.1 Authorization............................................... 17 |
3.2 Purchase Entirely for Own Account........................... 17 3.3 Disclosure of Information................................... 17 3.4 Restricted Securities....................................... 18 3.5 No Public Market............................................ 18 3.6 Legends..................................................... 18 3.7 Accredited Investor......................................... 18 3.8 Foreign Investors........................................... 18 4. CONDITIONS TO THE FUNDING COMMITMENT DATE........................... 19 4.1 Representations and Warranties.............................. 19 4.2 Performance................................................. 19 4.3 Compliance Certificate...................................... 19 4.4 Qualifications.............................................. 19 4.5 Stockholders' Agreement..................................... 19 4.6 Management Rights Letter.................................... 19 4.7 Indemnification Agreement................................... 20 4.8 Stockholder Approval; Restated Certificate.................. 20 4.9 Confidential Information and Invention Assignment Agreement................................................ 20 4.10 Proceedings and Documents................................... 20 4.11 Investors Rights Agreement.................................. 20 4.12 Escrow Agreement............................................ 20 4.13 Exchange Agent Agreement.................................... 21 4.14 Assurances of and "Clear Line of Sight" With Respect to Shares to Be Tendered.................................... 21 4.15 No Material Adverse Effect.................................. 21 4.16 2006 Sale Participation Program............................. 21 4.17 Approvals................................................... 21 4.18 Termination of Executive Compensation Plan.................. 21 4.19 Allan Kaplan Consulting Agreement........................... 21 5. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING................ 21 5.1 Representations and Warranties.............................. 21 5.2 Performance................................................. 22 5.3 Compliance Certificate...................................... 22 5.4 Secretary's Certificate..................................... 22 5.5 Restated Certificate........................................ 22 5.6 Opinion of Counsel.......................................... 22 5.7 Board of Directors.......................................... 22 5.8 Closing of Offer to Purchase................................ 22 5.9 Funding Commitment Date Deliverables........................ 22 6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.................. 22 6.1 Representations and Warranties.............................. 22 6.2 Performance................................................. 23 6.3 Restated Certificate........................................ 23 6.4 Management Rights Letter and Escrow Agreenment.............. 23 7. HOLD HARMLESS; INDEMNIFICATION...................................... 23 |
7.1 Escrow; Hold Harmless....................................... 23 7.2 Indemnification Procedures.................................. 25 7.3 Stockholders' Representative................................ 26 8. CONDUCT OF BUSINESSES PENDING THE CLOSING........................... 28 8.1 Conduct of Business by the Company Pending the Closing...... 28 8.2 Litigation.................................................. 30 8.3 Notification of Certain Matters............................. 30 8.4 Tax Reporting............................................... 30 9. SATISFACTION OF FUNDING COMMITMENT AND CLOSING CONDITIONS; TERMINATION...................................................... 30 9.1 Satisfaction of Closing Conditions.......................... 30 9.2 Termination Events.......................................... 30 10. MISCELLANEOUS....................................................... 32 10.1 Transfer; Successors and Assigns............................ 32 10.2 Governing Law............................................... 32 10.3 Counterparts................................................ 32 10.4 Titles and Subtitle......................................... 32 10.5 Notices..................................................... 32 10.6 Finder's Fees............................................... 32 10.7 Fees........................................................ 32 10.8 Amendments and Waiver....................................... 33 10.9 Severability................................................ 33 10.10 Delays or Omission.......................................... 33 10.11 Entire Agreement............................................ 33 10.12 Confidentiality............................................. 33 10.13 Exculpation Among Purchasers................................ 34 10.14 Survival of Warranties...................................... 34 10.15 Specific Enforcement........................................ 34 10.16 Other Engagements and Activities............................ 35 10.17 No Promotion................................................ 35 10.18 Exclusivity................................................. 35 |
SERIES B CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Series B Convertible Preferred Stock Purchase Agreement (the "AGREEMENT") is made as of May 18, 2006 by and between Limelight Networks, Inc., a Delaware corporation (the "COMPANY"), the investors listed on Exhibit A attached hereto (each, a "PURCHASER" and together, the "PURCHASERS") and, with respect to Section 7 and Section 10.8 only, Michael Gordon as the Stockholders' Representative (as defined in Section 7).
The parties hereby agree as follows:
1. PURCHASE AND SALE OF SERIES B PREFERRED STOCK.
1.1 Sale and Issuance of Series B Preferred Stock.
(a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Closing (as defined below) the Amended and Restated Certificate of Incorporation in the form attached hereto as Exhibit B (the "RESTATED CERTIFICATE").
(b) Subject to the terms and conditions of this Agreement, each Purchaser, severally and not jointly, agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series B Convertible Preferred Stock (the "SERIES B STOCK") listed opposite such Purchaser's name on Exhibit A attached hereto at a purchase price of $4.8909 per share (the "SERIES B PRICE") for an aggregate sale of 25,557,661 shares of Series B Stock for an aggregate purchase price of $124,999,964.23 (the "PROCEEDS"). The shares of Series B Stock issued to each Purchaser pursuant to this Agreement are hereinafter referred to as the "STOCK."
1.2 Closing Delivery.
(a) Subject to the satisfaction of Sections 5 and 6 hereof, the purchase and sale of the Stock shall take place at the offices of Heller Ehrman LLP, 275 Middlefield Rd., Menlo Park, CA 94025, at 10:00 a.m. (San Francisco time), no later than the first business day following the satisfaction or waiver of the conditions set forth in Sections 5 and 6 hereof; or at such other time and place as the Company and the Purchasers purchasing a majority of the Stock mutually agree upon, orally or in writing (which time and place are designated as the "CLOSING").
(b) At the Closing, the Company shall deliver to each Purchaser a certificate representing the Stock being purchased hereby against payment of the purchase price by check payable to the Company or wire transfer to the Company's bank account or the Exchange Agent pursuant to the provisions of Section 1.4(a).
1.3 Funding Commitment Date.
Subject to the satisfaction of Section 4 hereof, each of the Purchasers shall on the date of such satisfaction deliver a certificate (the "FUNDING COMMITMENT CERTIFICATE") certifying that (i) such Purchaser confirms that all conditions of Section 4 have been satisfied or waived, (ii) subject only to the satisfaction, or waiver by the Purchasers, of the conditions set forth in
Section 5 and the satisfaction, or waiver by the Company, of the conditions set forth in Section 6, such Purchaser has an irrevocable obligation to purchase that number of shares of Series B Stock listed opposite such Purchaser's name on Exhibit A and (iii) such Purchaser has sufficient funds to consummate such purchase. The time and date of the satisfaction of Section 4 are referred to herein as the "FUNDING COMMITMENT DATE."
1.4 Use of Proceeds; Repurchase; Escrow.
(a) At the Closing, $100,000,000 of the Proceeds (the "OFFERING FUNDS") shall be delivered to US Bank, National Association (the "EXCHANGE AGENT") to be held and administered by the Exchange Agent pursuant to the Exchange Agent Agreement (as defined below). The Company shall use the Offering Funds to repurchase shares of the Company's capital stock outstanding prior to the date hereof or issuable upon exercise of securities outstanding on the date hereof from currently existing stockholders and/or holders of vested stock options to purchase shares of common stock of the Company and at a per share purchase price not to exceed the Series B Price (as adjusted for stock splits, stock combinations, dividends, recapitalizations and the like) pursuant to the terms of the Offer to Purchase (as defined below) and the Stockholder Tender Agreement (as defined below) with each of Allan Kaplan, Nathan Raciborski, Michael Gordon, William Rinehart (and/or their affiliated investment entities) (collectively, the "FOUNDERS") and Amalia Limited and Northview Investments, LLC (the "SERIES A HOLDERS" and collectively with the Founders, the "MAJOR STOCKHOLDERS") (together, the "STOCKHOLDER TENDER AGREEMENTS") (the "REPURCHASE"); provided, further, that the Company agrees that, unless approved in writing by holders of a majority in interest of the Series B Preferred, in no event shall less than $90,000,000 of the Proceeds be used to repurchase shares of the Company's capital stock in the Repurchase. All tendering stockholders shall be referred to herein as the "TENDERING STOCKHOLDERS." All payments to the Tendering Stockholders shall be subject to the provisions of Section 1.4(c) hereof.
(b) The Company hereby covenants and agrees that the Repurchase shall be effected by the Company in full compliance with all applicable laws, rules and regulations, including, without limitation, the Securities Act of 1933, as amended (the "SECURITIES ACT") and the Securities Exchange Act of 1934, as amended (the "1934 ACT"). The Repurchase shall be effected pursuant to each of the Stockholder Tender Agreements substantially in the forms attached hereto as Exhibit C. the Offer To Purchase (the "OFFER TO PURCHASE") and the Letter of Transmittal (the "LETTER OF TRANSMITTAL"), in forms that are mutually acceptable to the Company and the Purchasers purchasing a majority of the Stock, or such other instruments mutually agreed to by the Company and the Purchasers of a majority of the Series B Stock issued pursuant to this Agreement. Any shares of the Company's capital stock repurchased pursuant to the Repurchase shall be cancelled by the Company upon such repurchase and shall not be reissued by the Company thereafter. Promptly following the consummation of the Repurchase (and in any event within ten (10) business days thereafter), the Company shall deliver to each of the Purchasers a true, correct and complete schedule of the security holders of the Company as of the Closing (after giving effect to the Closing and the consummation of the Repurchase) showing the then outstanding securities held by each such security holder.
(c) Notwithstanding the provisions of Section 1.4(a), subject to and immediately after the consummation of the Repurchase, the Exchange Agent shall deliver an
aggregate of 10% of the actual amount of Offering Funds to be delivered to the
Tendering Stockholders (the "ESCROW") to US Bank, National Association (the
"ESCROW AGENT"), to be held and administered in accordance with Section 7 hereof
and the Escrow Agreement (as defined below), such Escrow to be deducted, pro
rata based on the aggregate amount of the Offering Funds to be received by the
Tendering Stockholder under Section 1.4(a), from the aggregate amount otherwise
payable to each such Tendering Stockholder as of the consummation of the
Repurchase. The Escrow shall serve as the security for the indemnification
obligations of the Tendering Stockholders for Losses (as defined below) under
Section 7 hereof. Any amounts then held in Escrow and not previously paid in
respect of any claims for indemnification under Section 7, and not subject to
any pending claims for indemnification under Section 7, shall be released to the
Tendering Stockholders not more than five (5) days after the Escrow Termination
Date. For the purposes of this Agreement, the "ESCROW TERMINATION DATE" shall
mean the earliest of the following to occur: (i) the 18-month anniversary of the
Closing, (ii) the closing of a Liquidation (as defined in the Restated
Certificate) and (iii) 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 convert their shares into shares of Common Stock
in connection with such public offering.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser, except as set forth on a Schedule of Exceptions delivered to the Purchasers on the date hereof as follows. Each exception contained on the Schedule of Exceptions indicates specifically the representation to which it relates and shall be deemed to be a modification of such representation and warranties contained in the section indicated; provided, that any information disclosed under any paragraph of the Schedule of Exceptions shall be deemed disclosed and incorporated into any other section, subsection, paragraph and clause hereof where it is reasonably apparent on its face that such disclosure, without reference to extrinsic documentation, is relevant to such other section, subsection, paragraph or clause. In addition, for purposes of these representations and warranties, the term "Company" shall include any subsidiaries of the Company, unless otherwise noted.
2.1 Organization. Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite corporate power and authority to carry on its business as now conducted and as currently proposed to be conducted and to own and operate its properties. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to qualify would have a material adverse effect on the assets, properties, financial condition, operating results or business of the Company (as such business is presently conducted and as it is proposed to be conducted); provided, however, that any adverse effect arising from or otherwise relating to the announcement or pendency of this Agreement or the transactions contemplated hereby shall not be taken into account in determining whether there has been or would be, a material adverse effect (a "MATERIAL ADVERSE EFFECT").
2.2 Capitalization. Upon the filing of the Restated Certificate, the authorized capital of the Company consists, or will consist, immediately prior to the Closing of:
(a) 30,214,000 shares of Preferred Stock, $0.001 par value per share, 4,614,000 of which shares have been designated Series A Preferred Stock, 4,614,000 of which are issued and outstanding as of the date hereof, and 25,600,000 of which shares have been designated Series B Preferred Stock, none of which are issued and outstanding immediately prior to the Closing. All of the outstanding shares of Series A Preferred Stock have been duly authorized, fully paid, are validly issued and are nonassessable and have been issued in compliance with all applicable federal and state securities laws. The rights, privileges and preferences of the Series A Preferred Stock and Series B Stock will be as stated in the Company's Restated Certificate.
(b) 77,000,000 shares of Common Stock, $0.001 par value per share, 23,556,414 shares of which are issued and outstanding as of the date hereof. All of the outstanding shares of Common Stock have been duly authorized, fully paid, are validly issued and are nonassessable and have been issued in compliance with all applicable federal and state securities laws.
(c) The outstanding securities of the Company as of the date hereof are owned by the security holders and in the numbers specified in Schedule 2.2(c) of the Schedule of Exceptions.
(d) The Company has reserved 8,651,000 shares of Common Stock for issuance to officers, directors, employees and consultants of the Company pursuant to its 2003 Incentive Compensation Plan (the "STOCK PLAN"). Of such reserved shares of Common Stock, 343,767 have been issued upon the exercise of stock options, 4,880,619 are subject to stock options currently issued and outstanding and 3,426,614 are issuable upon the exercise of stock options that remain available for issuance under the Stock Plan. All such outstanding options have been issued in compliance with state and federal securities laws. Section 2.2(d) of the Schedule of Exceptions lists each "nonqualified deferred compensation plan" (as such term is defined in Section 409A(d)(1) of the Code) sponsored or maintained by the Company and each ERISA Affiliate. Each nonqualified deferred compensation plan has been operated since January 1, 2005 in good faith compliance with Section 409A of the Code and any IRS guidance issued with respect thereto. No such nonqualified deferred compensation plan has been "materially modified" (within the meaning of IRS Notice 2005-1) at any time after October 3, 2004.
(e) Except for (i) the conversion privileges of the Series A Preferred Stock and the Series B Stock, (ii) outstanding options issued pursuant to the Stock Plan, (iii) outstanding warrants to purchase three million nine hundred seventy-two thousand nine hundred seventy-eight (3,972,978) shares of the Company's Common Stock, (iv) the rights provided in that certain Amended and Restated Stockholders' Agreement of even date herewith substantially in the form attached hereto as Exhibit D (the "STOCKHOLDERS' AGREEMENT") and that certain Amended and Restated Investors' Rights Agreement of even date herewith substantially in the form attached hereto as Exhibit E (the "INVESTORS RIGHTS AGREEMENT"), and (v) 2,500,000 shares of Common Stock that are reserved for issuance to the Founders in the form of non-qualified statutory options (the "FOUNDERS OPTION SHARES"), there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, for the purchase or acquisition from the Company of any shares of its capital stock or securities convertible into or exchangeable or exercisable for
shares of capital stock. Immediately after the Closing, the Board will grant the Founders Option Shares to the Founders pursuant to the allocations set forth in the Schedule of Exceptions with an effective grant date of the Closing and with a per share exercise price equal to fair market value of the Common Stock at the time of grant after taking into account the Repurchase and the other transactions contemplated hereby. Such Founders Option Shares shall vest as follows: 1/12th shall vest on each monthly anniversary of the Closing and shall be subject to the potential acceleration of vesting as provided in the Option Agreement in substantially the form set forth on Exhibit F.
(f) All outstanding securities of the Company, including, without
limitation, all outstanding shares of the capital stock of the Company, all
shares of the capital stock of the Company issuable upon the conversion or
exercise of all convertible or exercisable securities and all other securities
that the Company is obligated to issue, are subject to a one hundred eighty
(180) day "market stand-off restriction upon an initial public offering of the
Company's securities pursuant to a registration statement filed with the
Securities and Exchange Commission pursuant to the Securities Act in a form
substantially identical to Section 1.5 of the Stockholders' Agreement.
(g) Except as otherwise provided in Section 2.2(e), all options granted under the Stock Plan vest as follows: twenty-five percent (25%) of the shares vest one (1) year following the vesting commencement date, with the remaining seventy-five percent (75%) vesting in equal monthly installments over the next three (3) years. Except as set forth in the Schedule of Exceptions, no stock plan, stock purchase, stock option or other agreement or understanding between the Company and any holder of any securities or rights exercisable or convertible for securities provides for acceleration of the vesting provisions of such agreement or understanding as the result of the occurrence of any event.
2.3 C Corporation; Subsidiaries. The Company is a subchapter C corporation. Except as set forth in the Schedule of Exceptions, the Company does not currently own or control, directly or indirectly, any interest in any other corporation, association, or other business entity. The Company is not a participant in any joint venture, partnership or similar arrangement.
2.4 Authorization. All corporate action on the part of the Company, its officers, directors, and stockholders necessary for the authorization, execution and delivery of this Agreement, the Stockholders' Agreement and any other agreement contemplated hereby or thereby to which the Company is a party (collectively, the "TRANSACTION AGREEMENTS"), the performance of all obligations of the Company hereunder and thereunder (including, without limitation, the Repurchase) and the authorization, issuance and delivery of the Stock has been taken or will be taken prior to the Closing, and the Transaction Agreements, when executed and delivered by the Company, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general applications affecting enforcement of creditors' rights generally, as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
2.5 Valid Issuance of Stock; Offering.
(a) The Stock being issued to the Purchasers hereunder, when issued, sold and delivered in accordance with the terms hereof for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements and applicable state and federal securities laws. Based in part upon the representations of the Purchasers in this Agreement and subject to the provisions of Section 2.6 below, the Stock will be issued in compliance with all applicable federal and state securities laws. The Common Stock issuable upon conversion of the Stock has been duly and validly reserved for issuance, and upon issuance in accordance with the terms of the Restated Certificate, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other than restrictions on transfer under the Transaction Agreements and applicable federal and state securities laws and will be issued in compliance with all applicable federal and state securities laws.
(b) Subject in part to the truth and accuracy of each Purchaser's representations set forth in Section 3 hereof, the offer, sale and issuance of the Stock contemplated by this Agreement are exempt from the registration requirements of any applicable state and federal securities laws, and neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemption. The Offer to Purchase and all other documents and actions contemplated by Section 1.3(a) comply with the applicable requirements of the Securities Act and the 1934 Act.
2.6 Government Consent. Other than with respect to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, no consent, approval, order or authorization of, or registration, qualification, designation or filing with, any federal, state or local governmental authority on the part of the Company is required in connection with the consummation of the transactions contemplated by this Agreement, including, without limitation, the Repurchase, except for filings to be made after the Closing under applicable state securities laws, and the Securities Act, and the rules thereunder, which filings will be made in a timely manner.
2.7 Litigation. There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or, to the Company's knowledge, currently threatened against the Company that questions the validity of the Transaction Agreements or the right of the Company to enter into them, or to consummate the transactions contemplated thereby, or that would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, or any change in the current equity ownership of the Company. Neither the Company nor, to the Company's knowledge, any of its officers or directors, is a party or is named as subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality. There is no action, suit, proceeding or investigation by the Company pending or which the Company intends to initiate. The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of any of the Company's employees, their use in connection with the Company's business, or any information or techniques allegedly proprietary to any of their former employers, or their obligations under any agreements with prior employers.
2.8 Intellectual Property.
(a) The Company owns or possesses sufficient legal rights to all Technology and Intellectual Property Rights (exclusive of Non-CDN Intellectual Property Rights) and, to the Company's knowledge, all Non-CDN Intellectual Property Rights, necessary for its business as now conducted, or proposed to be conducted, without any conflict with, or infringement of, the rights of others. Except as set forth in the Schedule of Exceptions, there are no outstanding options, licenses or agreements of any kind relating to the foregoing, nor is the Company bound by or a party to any options, licenses or agreements of any kind with respect to the Technology or Intellectual Property Rights of any other person or entity.
(b) The Company has taken all reasonable measures necessary to protect the proprietary nature of the Company's Technology and Intellectual Property Rights that are (i) owned or licensed by the Company and (ii) material to the business of the Company as currently conducted or proposed to be conducted. The Company is not subject to any "open source," "copyleft," or other similar licenses or obligations that requires the Company to disclose or make available to any third party the source code to any of the Company's Technology.
(c) The Company is not aware of any communication, including without limitation oral communications, alleging that the Company has violated or, by conducting its business, would violate any of the Intellectual Property Rights of any other person or entity. No use or proposed use by the Company of its Technology and Intellectual Property Rights (excluding Non-CDN Intellectual Property Rights), nor, to the Company's knowledge, any use or proposed use by the Company of its Non-CDN Intellectual Property Rights has infringed or will infringe upon any Intellectual Property Rights of others. The use of such Technology or Intellectual Property Rights (excluding Non-CDN Intellectual Property Rights), and, to the Company's knowledge, the use of its Non-CDN Intellectual Property Rights, in the business of the Company will not constitute an infringement, misappropriation or misuse of any Intellectual Property Rights of any third party.
(d) None of the Company's officers or, to the knowledge of the Company, employees are obligated under any contract (including licenses, covenants or commitments of any nature) or other agreement of any kind, or subject to any judgment, decree or order of any court or administrative agency, that would interfere with the use of such officer's or employee's best efforts to promote the interest of the Company or that would conflict with the Company's business. Neither the execution or delivery of this Agreement, nor the carrying on of the Company's business as now conducted and as currently proposed to be conducted by the officers and employees of the Company, will result in a breach of the terms, conditions, or provisions of, or constitute a default under, any contract, covenant or instrument under which any such officer or, to the knowledge of the Company, employee is now obligated. The Company does not believe it is or will be necessary to use any Technology or Intellectual Property Rights of any of its present or former officers or employees (or persons it currently intends to hire) made prior to their employment by or any other association with the Company, except as the same have been fully assigned to the Company. The Company's officers and, to the knowledge of the Company, employees are not making improper use of any confidential information or other Technology or Intellectual Property Rights of others, including those of any former employer.
(e) The Schedule of Exceptions contains a complete list of the Company's patents (including applications therefor), copyrights, tradenames, domain names and World Wide Web addresses and sites as of the date hereof.
(f) The Company is not obligated to make any payments by way of royalties, fees or otherwise to any owner or licensor of or claimant to any Technology or Intellectual Property Rights with respect to the use thereof in connection with the conduct of its business as presently conducted, or proposed to be conducted. There are no agreements, understandings, instruments, contracts, judgments, orders or decrees to which the Company is a party or by which it is bound that involve indemnification by the Company with respect to infringements of any Intellectual Property Rights. No Technology or Intellectual Property Rights of the Company are subject to any proceeding or outstanding decree, order, judgment or settlement agreement or stipulation that restricts in any manner the use, transfer or licensing thereof by the Company or that may affect the validity, use or enforceability of such Company Technology or Intellectual Property Rights.
(g) The products of the Company are free of any defects or errors, which, or may reasonably be expected to, materially and adversely affect the value, functionality or fitness for the intended purpose of such products.
(h) "INTELLECTUAL PROPERTY RIGHTS" shall mean any and all of the following and all rights in, arising out of, or associated therewith: (i) all United States and foreign patents and utility models and applications therefor, and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations in part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries including without limitation invention disclosures ("PATENTS"); (ii) all copyrights, copyright registrations and applications therefor, and all other similar rights corresponding thereto throughout the world, including without limitation "moral" rights ("COPYRIGHTS"); (iii) all industrial designs and any registrations and applications therefor throughout the world; (iv) mask works, mask work registrations and applications therefor, and all other similar rights corresponding thereto throughout the world ("MASK WORKS"); (v) all trade secrets and other rights in know how and confidential or proprietary information; (vi) all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor and all goodwill associated therewith throughout the world ("TRADEMARKS and (vii) any similar, corresponding, or equivalent rights to any of the foregoing anywhere in the world.
"TECHNOLOGY" shall mean any or all of the following (i) works of authorship
including, without limitation, computer programs, source code, and executable
code, whether embodied in Software, firmware or otherwise, architecture,
documentation, designs, files, records, and data; (ii) inventions (whether or
not patentable), discoveries, improvements, and technology; (iii) proprietary
and confidential information, including without limitation technical data and
customer and supplier lists, trade secrets show how, know how, and techniques;
(iv) databases, data compilations and collections and technical data; (v) logos,
trade names, trade dress, trademarks and service marks; (vi) domain names, World
Wide Web addresses and sites; (vii) tools, methods, processes, devices,
prototypes, schematics, bread boards, net lists, mask works, test methodologies,
verilog files, emulation and simulation reports, test vectors and hardware
development tools; and (viii) any and all instantiations of the foregoing in any form and embodied in any media.
"NON-CDN INTELLECTUAL PROPERTY RIGHTS" shall mean all Intellectual Property Rights other than the Intellectual Property Rights owned, licensed or possessed by any of the entities set forth in Section 2.8(a)(1) of the Schedule of Exceptions or any affiliates thereof.
2.9 Compliance with Other Instruments. The Company is not in violation or default of any provisions of its Restated Certificate or Bylaws, as amended. The Company is not, nor has it ever been, in violation or default of any instrument, judgment, order, writ, decree or contract to which it is a party or by which it is bound or of any provision of any federal or state statue, rule or regulation applicable to the Company ("LAW"), in each case, the effect of which would have a Material Adverse Effect. To the Company's knowledge, all parties to material contracts and commitments with the Company are in compliance therewith in all material respects. The execution, delivery and performance of the Transaction Agreements and the consummation of the transactions contemplated hereby or thereby, including, without limitation, the Repurchase, will not result in any such violation, or be in conflict with or constitute, with or without the passage of time and giving of notice, either a default under any such Law, instrument, judgment, order, writ, decree or contract or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations or of its assets or properties. The Company has avoided every condition, and has not performed any act, the occurrence of which would result in the Company's loss of any right granted under any license, distribution agreement or other agreement.
2.10 Agreements; Action.
(a) Except for agreements explicitly contemplated by the Transaction
Agreements, there are no agreements, understandings, instruments, contracts or
proposed transactions to which the Company is a party or by which it is bound
that involve (i) obligations (contingent or otherwise) of, or payments to, the
Company in excess of $50,000 individually, or $100,000 in the aggregate, (ii)
the license of any patent, copyright, trade secret or other proprietary right to
or from the Company (other than standard "off the shelf" product licenses),
(iii) the grant of rights to manufacture, produce, assemble, license, market, or
sell its products to any other person or affect the Company's exclusive right to
develop, manufacture, assemble, distribute, market or sell its products or (iv)
indemnification by the Company with respect to infringements of proprietary
rights (other than as set forth in contracts entered into in the ordinary course
of business).
(b) The Company has not (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock, (ii) incurred any indebtedness for money borrowed or incurred any other liabilities individually in excess of $25,000 or in excess of $50,000 in the aggregate, other than in the ordinary course of business, (iii) made any loans or advances to any person, other than ordinary advances for business expenses, or (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than in the ordinary course of business.
(c) For the purposes of subsections (a) and (b) above, all indebtedness, liabilities, agreements, understandings, instruments, contracts and proposed transactions involving the same person or entity (including persons or entities the Company has reason to believe are affiliated therewith) shall be aggregated for the purpose of meeting the individual minimum dollar amounts of such subsections.
(d) Except for the Transaction Agreements, there are no agreements, understandings, or purposed transactions between the Company and any of its officers, directors, affiliates, or any affiliates thereof.
(e) The Company is not a party to and is not bound by any contract, agreement, or instrument, or subject to any restriction under its Restated Certificate, that materially adversely affects its assets, properties, financial conditions, operating results, business or prospects.
(f) Other than in connection with the transactions contemplated hereby, the Company has not entered into any letter of intent, memorandum of understanding or other similar document (i) with any representative of any corporation or corporations regarding the merger of the Company with or into any such corporation or corporations, (ii) with any representative of any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all or substantially all of the assets of the Company or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company would be disposed of, or (iii) regarding any other form of liquidation, dissolution or winding up of the Company.
2.11 No Conflict of Interest. The Company is not indebted, directly or indirectly, to any of its officers or directors or to any members of their immediate families, or, to the knowledge of the Company, any employees or any members of their immediate families, in any amount whatsoever other than in connection with expenses or advances of expenses incurred in the ordinary course of business consistent with past practice, or relocation expenses of employees, which are not material in nature. None of the Company's officers or directors, or any members of their immediate families, or, to the knowledge of the Company, any employees or any members of their immediate families, are, directly or indirectly, indebted to the Company or, to the Company's knowledge, have any direct or indirect ownership interest in any firm or corporation with which the Company is affiliated or with which the Company has a business relationship, or any firm or corporation that competes with the Company except that officers, directors and/or stockholders of the Company may own stock in (but not exceeding two percent (2%) of the outstanding capital stock of) any publicly traded company that may compete with the Company. None of the Company's officers or directors or, to the Company's knowledge, any employees or any members of such officers', directors' or employees' immediate families are, directly or indirectly, interested in any material contract with the Company. The Company is not a guarantor or indemnitor of any indebtedness of any other person, firm or corporation. Section 2.11 of the Schedule of Exceptions sets forth a complete list of any transaction between (a) the Company and (b) any of its officers or directors, any members of their immediate families or any of their affiliates that involve or involved obligations (contingent or otherwise) of, or payments to or from, the Company in excess of $5,000; other than (i) agreements relating to the ownership of the Company's securities, (ii) agreements relating to the employment or consulting
relationship of such officer or director with the Company, (iii) agreements executed in connection with the transactions contemplated by the Series B Agreement and (iv) agreements involving the advancement of expenses in the ordinary course of business.
2.12 Rights of Registration and Voting Rights. Except as contemplated in the Investor Rights Agreement, the Company has not granted or agreed to grant any registration rights, including piggyback rights, to any person or entity. Except as contemplated by the Stockholders' Agreement, neither the Company nor, to the Company's knowledge, any stockholder of the Company has entered into any agreements with respect to voting or giving of written consents of the capital stock of the Company or the voting or giving of written consents by a director of the Company.
2.13 Title to Property and Assets. The Company owns its property and assets free and clear of all mortgages, liens, loans and encumbrances, except such encumbrances and liens which arise in the ordinary course of business and do not materially impair the Company's ownership or use of such property or assets. With respect to the property and assets it leases, the Company is in material compliance with such leases and, to its knowledge, holds a valid leasehold interest free of any liens, claims, or encumbrances.
2.14 Financial Statements. The Company has delivered to each Purchaser its audited financial statements (balance sheet and income and cash flow statements, including notes thereto) at December 31, 2005 and for the fiscal year then ended, and its unaudited financial statements (balance sheet and income statement) as at and for the three (3) month period ended March 31, 2006 (the "FINANCIAL STATEMENTS"). The Financial Statements have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods indicated and with each other, except that the unaudited Financial Statements may not contain all footnotes required by generally accepted accounting principles. The Financial Statements fairly present the financial condition and operating results of the Company as of the dates, and for the periods, indicated therein, subject in the case of the unaudited Financial Statements to normal year-end audit adjustments. Except as set forth in the Financial Statements, the Company has no material liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to March 31, 2006 (the "FINANCIAL STATEMENT DATE") and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in the Financial Statements, which, in both cases, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company maintains and presently intends to maintain a standard system of accounting established and administered in accordance with generally accepted accounting principles.
2.15 Changes. Since December 31, 2005, there has not been:
(a) any change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the Financial Statements, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse;
(b) any material damage, destruction or loss, whether or not covered by insurance, affecting the business (as such business is presently conducted and as it is proposed to be conducted), properties, prospects, or financial condition of the Company;
(c) any waiver or compromise by the Company of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by the Company, except in the ordinary course of business and that is not material to the business (as such business is presently conducted and as it is proposed to be conducted), properties, prospects or financial condition of the Company;
(e) any material change to a material contract or agreement by which the Company or any of its assets is bound or subject;
(f) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(g) any resignation or termination of employment of any key officer or employee of the Company; and the Company, to its knowledge, does not know of any impending resignation or termination of employment of any such officer or employee;
(h) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;
(i) any mortgage, pledge, transfer of a security interest in, or lien, created by the Company, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;
(j) any loans or guarantees made by the Company to or for the benefit of its employees, officers or directors, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business;
(k) any declaration, setting aside or payment or other distribution in respect to any of the Company's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by the Company;
(l) any written notification that any customer of the Company who accounted for more than $30,000 of revenue during calendar year 2005 or was expected to account for more than $30,000 during calendar year 2006 (each, a "MAJOR CUSTOMER") is reducing in a material way its relationship with the Company or the use of the Company's service offerings from the Company's expectations with respect to such Major Customer;
(m) any sale, lease, license, pledge, grant, encumbrance or other disposal of any of its properties or assets which are material, individually or in the aggregate, to its business, except in the ordinary course of business, consistent with past practice;
(n) any incurrence of indebtedness for borrowed money or issuance of any debt securities, except in the ordinary course of business, consistent with past practice;
(o) any material tax election made by the Company, or settlement or compromise of any tax liability, or any consent to the extension or waiver of any statute of limitations with respect to taxes; or
(p) any arrangement or commitment by the Company to do any of the things described in this Section 2.15.
2.16 Taxes.
(a) Tax Returns and Payments. The Company has filed all tax returns and reports as required by Law. These returns and reports are true and correct in all material respects. The Company has paid all taxes and other assessments due. There is no pending dispute with any taxing authority relating to any of such returns and the Company has not received notice of any proposed liability for any tax to be imposed upon the properties or assets of the Company. The provision for taxes of the Company as shown in the Financial Statements is adequate for taxes due or accrued as of the date thereof. The Company has not elected pursuant to the Internal Revenue Code of 1986, as amended (the "CODE"), to be treated as a Subchapter S corporation or a collapsible corporation pursuant to Section 1362(a) or Section 341(f) of the Code, nor has it made any other elections pursuant to the Code (other than elections that relate solely to methods of accounting, depreciation or amortization and other than elections that are reflected in the Company's tax returns) that would have a material effect on the Company, its financial condition, its business as presently conducted or proposed to be conducted or any of its properties or material assets. The Company has never had any tax deficiency proposed or assessed against it and has not executed any waiver of any statute of limitations on the assessment or collection of any tax or governmental charge that is still in effect. None of the Company's federal income tax returns and none of its state income or franchise tax or sales or use tax returns has ever been audited by governmental authorities. Since the Financial Statement Date, the Company has not incurred any taxes, assessments or governmental charges other than in the ordinary course of business and the Company has made adequate provisions on its books of account for all taxes, assessments and governmental charges with respect to its business, properties and operations for such period. The Company has withheld or collected from each payment made to each of its employees, the amount of all taxes (including, but not limited to, federal income taxes, Federal Insurance Contribution Act taxes and Federal Unemployment Tax Act taxes) required to be withheld or collected therefrom, and has paid the same to the proper tax receiving officers or authorized depositories.
2.17 Labor Agreements and Actions. The Company is not bound by or subject to (nor are any of its assets or properties bound by or subject to) any written or oral, express or implied, contract, commitment or arrangement with any labor union, and no labor union has requested or, to the knowledge of the Company, has sought to represent any of the employees, representatives or agents of the Company. There is no strike or other labor dispute involving the Company pending, or to the Company's knowledge, threatened, that could have a Material Adverse Effect, nor is the Company aware of any labor organization activity involving its employees. The employment of each officer and employee of the Company is terminable at the will of the
Company. There are no material oral agreements between the Company and any of its officers or employees regarding employment or compensation. The Company does not have a present intention to terminate the employment of any officer or employee whose termination would have an adverse effect on the Company. The Company has complied in all material respects with all applicable state and federal equal employment opportunity laws and with other laws related to employment.
2.18 Confidential Information and Invention Assignment Agreements. Each current or former employee or consultant of the Company has executed an agreement with the Company regarding confidentiality and proprietary information substantially in the forms of the Company's Confidential Information and Invention Assignment Agreement attached hereto as Exhibit H. The Company is not aware that any of its employees or consultants is in violation thereof, and the Company will use its best efforts to prevent any such violation.
2.19 Permits. The Company has all material franchises, permits, licenses and any similar authority necessary for the conduct of its business as it is now being conducted and as proposed to be conducted. The Company is not in default in any material respect under any of such franchises, permits, licenses or other similar authority.
2.20 Corporate Documents. The Restated Certificate and Bylaws, as amended, of the Company are in the form made available to the Purchasers. The minutes of meetings of directors and stockholders and all actions by written consent without a meeting by the directors and stockholders were made available to counsel for the Purchasers. Each such minute and action by written consent accurately reflects all actions by the directors and stockholders with respect to all transactions referred to in such minutes, or actions by written consent, in all material respects.
2.21 Employee Benefit Plans.
(a) The following definitions will apply to this Section 2.21:
(i) "COMPANY EMPLOYEE PLAN" shall mean any plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded, including without limitation, each "employee benefit plan," within the meaning of Section 3(3) of ERISA which is or has been maintained, contributed to, or required to be contributed to, by the Company or any ERISA Affiliate for the benefit of any current or former employee, officer, director, consultant of the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate has or may have any liability or obligation;
(ii) "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended;
(iii) "ERISA AFFILIATE" shall mean any other person or entity
under common control with the Company within the meaning of Section 414(b), (c),
(m) or (o) of the Code or 4001 (b) of ERISA, and the regulations issued
thereunder;
(iv) "MULTIEMPLOYER PLAN" shall mean any "Pension Plan" (as defined below) which is a "multiemployer plan," as defined in Section 3(37) of ERISA;
(v) "PENSION PLAN" shall mean each Company Employee Plan which is an "employee pension benefit plan," within the meaning of Section 3(2) of ERISA;
(b) Schedule 2.21(b) of the Schedule of Exceptions sets forth a complete list of all Company Employee Plans.
(c) Neither the Company nor any ERISA Affiliate contributes to or has any contingent obligations to any Multiemployer Plan. Neither the Company nor any ERISA Affiliate has incurred any liability (including secondary liability) to any Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as a result of a sale of assets described in Section 4204 of ERISA.
(d) Neither the Company nor any ERISA Affiliate has ever maintained, established, sponsored, participated in, or contributed to, any Pension Plan which is subject to Title IV of ERISA or Section 412 of the Code. Neither the Company nor any ERISA Affiliate has any liability with respect to any post-retirement benefit under any Company Employee Plan which is a welfare plan (as defined in section 3(1) of ERISA), other than liability for health plan continuation coverage described in Part 6 of Title I(B) of ERISA.
(e) To the Company's knowledge, each Company Employee Plan is now and has always been operated in both form and operation in all material respects in accordance with its terms and the requirements of all applicable laws, rules and regulations, including, without limitation, ERISA, the Code and any applicable securities and employment laws, rules and regulations, and no condition exists or event has occurred with respect to any such plan which would result in the incurrence by the Company or any ERISA Affiliate of any material liability, fine or penalty. No Company Employee Plan is being audited or investigated by any government agency or is subject to any pending or threatened claim or suit. Neither the Company nor any ERISA Affiliate nor any fiduciary of any Company Employee Plan has engaged in a prohibited transaction under Section 406 of ERISA or Section 4975 of the Code. Each Company Employee Plan may be amended, terminated or otherwise discontinued at any time without material liability to the participants, the Purchasers, the Company or any ERISA Affiliate, other than ordinary administration expenses.
(f) Each Company Employee Plan intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service with respect to its qualified status under the Code, including, without limitation, all amendments to the Code effected by the Tax Reform Act of 1986 and subsequent legislation, the application for such letter was accurate and complete, and nothing has occurred since the date of such letter that would adversely affect the qualified status of such Company Employee Plan.
2.22 Disclosure. The Company has fully provided the Purchasers with all the information which the Purchasers have requested for deciding whether to acquire the Stock and all information which the Company believes is reasonably necessary to enable the Purchasers to make such a decision. No representation or warranty of the Company contained in this
Agreement and the exhibits attached hereto, or any certificate furnished or to be furnished to the Purchasers at the Closing or to stockholders of the Company in connection with the Repurchase, contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. The minute books of the Company made available to the Purchasers contain a true, complete and accurate summary of all meetings of any actions taken by the directors and stockholders of the Company since the date of the Company's formation.
2.23 Insurance. The Company holds and maintains valid policies covering such casualties and contingencies and of such types and amounts as is customary for companies similarly situated.
2.24 Environmental and Safety Law. The Company is not in violation of any applicable statute, law or regulation relating to the environment or occupational heath and safety, and to its knowledge, no material expenditures are or shall be required in order to comply with any such existing statute, law or regulation.
2.25 Real Property Holding Corporation. The Company is not a real property holding corporation within the meaning of Internal Revenue Code Section 897(c)(2) and any regulations promulgated thereunder and the Company has filed with the Internal Revenue Service all statements, if any, which are required under Section 1.897-2(h) of the Treasury Regulations.
2.26 Investment Company Act of 1940. The Company is not an "investment company" or a company "controlled" by an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
2.27 Brokers or Finders. Except as set forth in the Schedule of Exceptions, the Company has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Company, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or any of the transactions contemplated hereby.
2.28 Section 83(b) Elections. To the Company's knowledge, all individuals
who have purchased shares of the Company's Common Stock under agreements that
provide for the vesting of such shares have timely filed elections under Section
83 (b) of the Internal Revenue Code and any analogous provisions of applicable
state tax laws.
2.29 Obligations of Management. Each officer and key employee of the Company is currently devoting substantially all of his or her business time to the conduct of the business of the Company. The Company is not aware that any officer or key employee of the Company is planning to work less than full time at the Company in the future. No officer or key employee is currently working or, to the Company's knowledge, plans to work for a competitive enterprise, whether or not such officer or key employee is or will be compensated by such enterprise.
2.30 Peering Relationships.
Section 2.30 of the Schedule of Exceptions sets forth a detailed list of peering arrangements between the Company and third parties, comprising direct connections between the Company and any third party and direct connections between the Company and any peering switch, which shall include the number and size of all circuits provided by such third party or peering switch, and where the circuits are interconnected.
2.31 Outstanding Debt.
As of March 31, 2006, the Company has Outstanding Debt (as defined in the Schedule of Exceptions) of $15,967,551.49. An itemized schedule listing the obligations and amounts that make up the Company's Outstanding Debt as of March 31, 2006 is attached as Schedule 2.31.
2.32 April 2006 Revenue.
The Company's revenue as reported on its financial statements for April 2006 shall have been no less than $4,225,000, as calculated consistent with past practices.
3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser, severally and not jointly, hereby represents and warrants to the Company that:
3.1 Authorization. Such Purchaser has full power and authority to enter
into this Agreement. The Transaction Agreements, when executed and delivered by
the Purchaser, will constitute valid and legally binding obligations of the
Purchaser, enforceable in accordance with their terms, except (a) as limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and any other laws of general application affecting enforcement of
creditors' rights generally, and as limited by laws relating to the availability
of a specific performance, injunctive relief, or other equitable remedies, or
(b) to the extent the indemnification provisions contained in the Investors'
Rights Agreement may be limited by applicable federal or state securities laws.
3.2 Purchase Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser's representation to the Company, which by the Purchaser's execution of this Agreement, the Purchaser hereby confirms, that the Stock to be acquired by the Purchaser will be acquired for investment for the Purchaser's own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to such person or to any third person, with respect to any of the Stock.
3.3 Disclosure of Information. The Purchaser has had an opportunity to discuss the Company's business, management, financial affairs and the terms and conditions of the offering of the Stock with the Company's management. The Purchaser understands that such discussions, as well as any written information delivered by the Company to the Purchaser, were intended to
describe the aspects of the Company's business which it believes to be material. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of any Purchaser to rely thereon.
3.4 Restricted Securities. The Purchaser understands that the Stock has not been, and will not be, registered under the Securities Act, by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Purchaser's representations as expressed herein. The Purchaser understands that the Stock is a "restricted security" under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser must hold the Stock indefinitely unless the Stock is registered with the Securities and Exchange Commission and qualified by state authorities, or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company has no obligation to register or qualify the Stock for resale except as set forth in the Stockholders' Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned on various requirements including, but not limited to, the time and manner of sale, the holding period for the Stock, and on requirements relating to the Company which are outside of the Purchaser's control, and which the Company is under no obligation and may not be able to satisfy.
3.5 No Public Market. The Purchaser understands that no public market now exists for any securities issued by the Company, and that the Company has made no assurances that a public market will ever exist for the Stock.
3.6 Legends. The Purchaser understands that the Stock, and any securities issued in respect thereof or exchange therefor, may bear one or all of the following legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR, IF REASONABLY REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933."
(b) Any legend set forth in the other Transaction Agreements.
(c) Any legend required by the blue sky laws of any state to the extent such laws are applicable to the shares represented by the certificate so legended.
3.7 Accredited Investor. The Purchaser is an accredited investor as defined in Rule 501 (a) of Regulation D promulgated under the Securities Act.
3.8 Foreign Investors. If the Purchaser is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), such Purchaser hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with any invitation to subscribe for the Stock or any use of this Agreement, including
(i) the legal requirements within its jurisdiction for the purchase of the Stock, (ii) and foreign exchange restrictions applicable to such purchase, (iii) any governmental or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant to the purchase, holding, redemption, sale, or transfer of the Stock. Such Purchaser's subscription and payment for and continued beneficial ownership of the Stock will not violate any applicable securities or other laws of the Purchaser's jurisdiction.
4. CONDITIONS TO THE FUNDING COMMITMENT DATE.
With respect to the obligations of each Purchaser to the Company to deliver the Funding Commitment Certificate under this Agreement, such obligations are subject to the fulfillment on or before the Funding Commitment Date of each of the following conditions set forth below, unless otherwise waived in writing by each of such Purchaser and the Company.
4.1 Representations and Warranties. The representations and warranties of the Company contained in Sections 2 shall be true and correct as of the date hereof and shall be true and correct in all material respects on and as of the Funding Commitment Date with the same effect as though such representations and warranties had been made on and as of the date of the Funding Commitment Date.
4.2 Performance. The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with or by it on or before the Funding Commitment Date.
4.3 Compliance Certificate. The Chief Executive Officer of the Company shall deliver to the Purchasers at the Funding Commitment Date a certificate certifying that the conditions specified in Sections 4.1 and 4.2 have been fulfilled.
4.4 Qualifications. All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state that are required in connection with the lawful issuance, sale and purchase of the Stock pursuant to this Agreement shall be obtained and effective as of the Closing, including, without limitation, any and all filing requirements, waiting periods and other conditions of the Company and the Purchasers under the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
4.5 Stockholders' Agreement. The Company, each Purchaser and the
stockholders of the Company necessary to amend that certain Stockholders'
Agreement dated September 4, 2003 shall have executed and delivered the
Stockholders' Agreement to the Escrow Agent. The Escrow Agent shall hold such
agreement in escrow pending the satisfaction of the conditions set forth in
Section 5 and 6 (as evidenced by a certificate signed by the Company and the
Purchasers purchasing a majority of the Stock) at which time the Escrow Agent
shall release such agreement to the parties hereto and such agreement shall be
effective upon such release.
4.6 Management Rights Letter. The Company shall have executed and delivered to the Escrow Agent a letter relating to board observer and information rights in a form that is mutually acceptable to the Company and the Purchasers purchasing a majority of the Stock, which letter shall be finalized no later than three (3) business days following the date hereof, for
the benefit of GS Capital Partners V Institutional, L.P. (the "Management Rights Letter"). The Escrow Agent shall hold such Management Rights Letter in escrow pending the satisfaction of the conditions set forth in Section 5 and 6 (as evidenced by a certificate signed by the Company and the Purchasers purchasing a majority of the Stock) at which time the Escrow Agent shall release such letter to the parties hereto and such letter shall be effective upon such release.
4.7 Indemnification Agreement. The Company shall have executed an Indemnification Agreement for Pete Perrone, Joseph Gleberman and two other directors designated by an affiliate of GS Group (defined below) in the form attached hereto as Exhibit G and delivered such agreements to the Escrow Agent. The Escrow Agent shall hold such agreements in escrow pending the satisfaction of the conditions set forth in Section 5 and 6 (as evidenced by a certificate signed by the Company and the Purchasers purchasing a majority of the Stock) at which time the Escrow Agent shall release such agreements to the parties hereto and such agreement shall be effective upon such release.
4.8 Stockholder Approval; Restated Certificate. The Company shall have received the necessary consents from its stockholders to effect the transactions contemplated hereunder, including the consent necessary to adopt the Restated Certificate. The Company shall have delivered the duly executed Restated Certificate to the Escrow Agent. The Escrow Agent shall hold the Restated Certificate in escrow pending the satisfaction of Section 5.8 at which time the Escrow Agent shall automatically release such document to the Company to be filed with the Delaware Secretary of State.
4.9 Confidential Information and Invention Assignment Agreement. The Company and each of its current or former employees and consultants shall have entered into the Company's standard form Confidential Information and Invention Assignment Agreement, a form of which is attached hereto as Exhibit H.
4.10 Proceedings and Documents. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to the Purchaser's counsel, and the Purchaser's counsel shall have received all such counterpart original and certified or other copies of such documents as it may reasonably request.
4.11 Investors Rights Agreement. The Company, each Purchaser and the stockholders of the Company necessary to amend that certain First Amended and Restated Investors' Rights Agreement dated January 9, 2004 shall have executed and delivered the Investors Rights Agreement to the Escrow Agent. The Escrow Agent shall hold such agreement in escrow pending the satisfaction of the conditions set forth in Section 5 and 6 (as evidenced by a certificate signed by the Company and the Purchasers purchasing a majority of the Stock) at which time the Escrow Agent shall release such agreement to the parties hereto.
4.12 Escrow Agreement. The Company, the Stockholders' Representative and the Escrow Agent shall have executed and delivered an escrow agreement that is mutually acceptable to the Company and the Purchasers purchasing a majority of the Stock, which agreement shall be finalized no later than three (3) business days following the date hereof (the "ESCROW AGREEMENT").
4.13 Exchange Agent Agreement. The Company and the Exchange Agent shall have executed and delivered an exchange agent agreement that is mutually acceptable to the Company and the Purchasers purchasing a majority of the Stock, which agreement shall be finalized no later than three (3) business days following the date hereof (the "EXCHANGE AGENT AGREEMENT"). Such Exchange Agent Agreement shall be effective only upon the Closing.
4.14 Assurances of and "Clear Line of Sight" With Respect to Shares to Be Tendered. Securityholders of the Company shall have delivered Stockholder Tender Agreements and all related documents identified therein and/or the documents specified in the Offer to Purchase obligating them to sell at least 18,401,522 shares of capital stock in accordance with the terms of the Offer to Purchase.
4.15 No Material Adverse Effect. No Material Adverse Effect has occurred with respect to the Company and its subsidiaries, taken as a whole.
4.16 2006 Sale Participation Program. The Company shall have received the necessary consents from its stockholders to adopt a sale participation program in substantially the form attached hereto as Exhibit K.
4.17 Approvals. The Company shall have received all authorizations, consents, and approvals required to undertake the transactions contemplated thereby under its agreements with Silicon Valley Bank, Partners for Growth and Quova, Inc.
4.18 Termination of Executive Compensation Plan. The Company shall have terminated its Executive Compensation Plan, effective as of the end of the Company's second fiscal quarter.
4.19 Allan Kaplan Consulting Agreement. The Company shall have entered into a written consulting agreement with Allan Kaplan, in a form reasonably acceptable to a majority in interest of the Purchasers, which shall provide for an annual compensation of at least $75,000 and health coverage consistent with Mr. Kaplan's current coverage. The term of such agreement shall be one year, renewable with mutual consent of the Company and Mr. Kaplan.
5. CONDITIONS OF THE PURCHASERS' OBLIGATIONS AT CLOSING.
The obligations of each Purchaser to the Company under this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions, unless otherwise waived in writing by such Purchaser:
5.1 Representations and Warranties. The representations and warranties of the Company contained in Sections 2 shall be true and correct on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing (except to the extent such representations and warranties are specifically made as of a particular date, in which case such representations and warranties shall be true and correct as of such date) except where the failure to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect on the Company.
5.2 Performance. The Company shall have performed and complied in all material respects with all covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with or by it on or before the Closing.
5.3 Compliance Certificate. The Chief Executive Officer of the Company shall deliver to the Purchasers at the Closing a certificate certifying that the conditions specified in Sections 5.1 and 5.2 have been fulfilled.
5.4 Secretary's Certificate. The Secretary of the Company shall deliver to each Purchaser at the Closing a certificate stating that the copies of the Company's Restated Certificate and Bylaws and Board of Director and stockholder resolutions relating to the sale of the Stock attached thereto are true and complete copies of such documents and resolutions.
5.5 Restated Certificate. Upon the release of the Restated Certificate by the Escrow Agent, the Company shall have filed the Restated Certificate with the Secretary of State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing.
5.6 Opinion of Counsel. Heller Ehrman LLP, special counsel to the Company, shall have delivered to the Purchasers an opinion in substantially the form attached hereto as Exhibit I and Greenberg Traurig LLP, corporate counsel to the Company, shall have delivered to the Purchasers an opinion in substantially the form attached hereto as Exhibit J.
5.7 Board of Directors. As of the Closing, the size of the Board of Directors shall be set at seven (7) persons and shall consist of: Allan Kaplan, Nathan Raciborski, William Rinehart, Pete Perrone, Joseph Gleberman and two other directors designated by an affiliate of GS Group (defined below).
5.8 Closing of Offer to Purchase. At least 18,401,522 shares of capital stock shall have been validly tendered in accordance with the terms of the Offer to Purchase and not withdrawn, all conditions to the Company's obligations to accept such shares for payment have been satisfied or waived, and the Company shall have accepted such shares for payment and have an irrevocable obligation to make payment for such shares.
5.9 Funding Commitment Date Deliverables. All documents required to be delivered by the Company at or prior to the Funding Commitment Date shall be delivered by the Company to the Purchasers unmodified, except to change dates as appropriate.
6. CONDITIONS OF THE COMPANY'S OBLIGATIONS AT CLOSING.
The obligations of the Company to each Purchaser under this Agreement are subject to the fulfillment on or before the Closing of each of the following conditions, unless otherwise waived:
6.1 Representations and Warranties. The representations and warranties of each Purchaser contained in Section 3 shall be true and correct on and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing.
6.2 Performance. All covenants, agreements and conditions contained in this Agreement to be performed by the Purchasers on or prior to the Closing shall have been performed or complied with.
6.3 Restated Certificate. After the release of the Restated Certificate by the Escrow Agent, the Company shall have filed the Restated Certificate with the Secretary of State of Delaware on or prior to the Closing, which shall continue to be in full force and effect as of the Closing.
6.4 Management Rights Letter and Escrow Agreenment. The Company and the Purchasers shall negotiate the Management Rights Letter and Escrow Agreement, in forms reasonably acceptable to the Company.
7. HOLD HARMLESS; INDEMNIFICATION
7.1 Escrow; Hold Harmless.
(a) After the Closing, the Purchasers and their affiliates and their respective officers, directors and employees (collectively, the "Indemnified Parties") shall be held harmless by the Tendering Stockholders for any claims, liabilities, losses, damages, costs, deficiencies, expenses, and penalties incurred by or on behalf of the Indemnified Parties including, without limitation, reasonable attorneys' fees and expenses of investigation and defense incurred, sustained or paid by the Indemnified Parties, directly or indirectly, net of any recoveries under insurance policies or indemnities from third parties (collectively, "Losses"), arising out of, based upon or resulting from:
(i) any inaccuracy or breach of any representation or warranty or, with respect only to claims relating to Section 2.8 hereof, any alleged inaccuracy or alleged breach of any representation or warranty in such Section 2.8, made by the Company in this Agreement or in any certificate, instrument or other document delivered by or on behalf of the Company to the Purchasers pursuant to this Agreement;
(ii) the breach of any covenant or agreement made by the Company in this Agreement or in any certificate, instrument or other document delivered by or on behalf of the Company to the Purchasers pursuant to this Agreement;
(iii) any claims made by any Tendering Stockholder in connection with this Agreement or the transactions contemplated hereby, whether based upon any breach of fiduciary or other duty by any officer, director or stockholder of the Company or otherwise, or any claims by any officer, director or stockholder of the Company to indemnification by the Company with respect to any such claims; and
(iv) any Taxes of the Company attributable to any full or partial Tax periods ending on or prior to the Closing in excess of any specific reserve therefore reflected in the Financial Statements.
(b) Notwithstanding anything to the contrary contained in this Agreement:
(i) with respect to indemnification by the Tendering Stockholders, except with respect to indemnification claims for Losses based on fraud, willful misconduct or intentional misrepresentation (x) the Escrow shall be the sole and exclusive right and remedy for any Losses arising out of any and all claims relating to the subject matter of this Agreement, and (y) the maximum amount that may be recovered from any single Tendering Stockholder shall be limited to such stockholder's pro-rata share of the Escrow;
(ii) subject to Section 7.1(b)(iii), and except with respect to indemnification claims for Losses based on a breach of a representation or warranty contained in Section 2.2 or Section 2.16, no payment from the Escrow with respect to any Losses otherwise payable hereunder shall be payable until such time as all such Losses including any Excess IP Expenses, shall aggregate to more than $300,000 (the "ESCROW BASKET"), after which time only such Losses in excess of such amount may be reimbursable from the Escrow. For purposes of determining if a claim should be included in calculating the aggregate value of the claims, no individual claim with a value of less than $15,000 shall be included, however, related claims of any size shall be treated as one "claim" and shall be aggregated to determine if such claim exceeds the $15,000 threshold; and thus should be included in the Escrow Basket. With respect to indemnification claims for Losses based on a breach of a representation or warranty contained in Section 2.2 or Section 2.16, no payment from the Escrow with respect to any Losses otherwise payable hereunder shall be payable until such time as all such Losses shall aggregate to more than $15,000, after which time only such Losses in excess of such amount may be reimbursable from the Escrow;
(iii) with respect only to any alleged inaccuracy or alleged breach of Section 2.8 hereof, the following provisions shall apply: with respect to any claim by a third party alleging infringement of its Intellectual Property Rights or otherwise alleging facts that would constitute a breach of Section 2.8 hereof (the "THIRD PARTY INFRINGEMENT CLAIM"), the Company shall bear the expenses for defending and settling any such Third Party Infringement Claim; provided that upon the occurrence of the Company incurring expenses in excess of $500,000 with respect to all such Third Party Infringement Claims ("EXCESS IP EXPENSES"), such Excess IP Expenses shall be deemed to be Losses and be aggregated with all Losses until the Escrow Basket amount has been reached. After the Escrow Basket amount has been reached, 50% of any further Excess IP Expenses incurred by the Company shall be payable by the Tendering Stockholders to the Company out of the Escrow. All such payments of further Excess IP Expenses pursuant to this Section 7.1(b)(iii) shall be made by Escrow Agent to the Company upon notice from the Company that the Company has incurred such further Excess IP Expenses. For purposes of determining if a claim or expense should be included in calculating the aggregate value of the claims and expenses with respect to satisfying the aforementioned $500,000 threshold and the Excess IP Expenses, if any, no individual claim or expense with a value of less than $15,000 shall be included, however, related claims of any size shall be treated as one "claim" and shall be aggregated to determine if such claim exceeds the $15,000 threshold; and thus should be applied toward the $500,000 threshold and included in the Excess IP Expenses;
(iv) no claim for indemnification from the Tendering Stockholders shall be made unless asserted by a written notice delivered to the Stockholders' Representative
(as defined below) on or prior to the Escrow Termination Date in accordance with the Escrow Agreement;
(v) in the event that any Losses that would otherwise have been payable pursuant to this Section 7 are satisfied in whole or in part by an adjustment to the conversion price of the Series B Preferred Stock as provided under Article IV Section A(4)(e) of the Restated Certificate, then no claim for indemnification shall be made or paid to the extent and only to the extent that such Losses were compensated through such adjustment; and
(vi) except with respect to claims based on fraud, willful misconduct or intentional misrepresentation, an Indemnified Party shall have no recourse for a claim against the Company if such claim is subject to indemnification by the Tendering Stockholders pursuant to this Section 7 until the earlier of the Escrow Termination Date or the date on which the entire Escrow has been distributed and provided that no claim shall be made against the Company until such time as all such claims shall aggregate to more than $15,000 after which time only those claims in excess of such amount may be made. Notwithstanding the foregoing, an Indemnified Party shall be entitled to pursue any claim against the Company if such Indemnified Party reasonably believes in good faith that (a) the funds remaining in Escrow will likely not be sufficient to satisfy such claim and (b) the delay in filing such claim pending resolution of an indemnification claim hereunder is likely to cause such Indemnified Party to lose its right to pursue such claim under applicable statutes of limitations.
7.2 Indemnification Procedures.
(a) The obligations and liabilities of Indemnifying Parties under this
Section 7 with respect to Losses arising from (i) actual claims or demands or
(ii) claims or demands threatened in writing and for which an actual claim or
demand is made within a reasonable period of time of such threat by any third
party which are subject to the indemnification provided for in this Section 7
("Third Party Claims") shall be governed by and be contingent upon the following
additional terms and conditions. If an Indemnified Party shall receive notice of
any Third Party Claim, the Indemnified Party shall give the Stockholders'
Representative notice of such Third Party Claim within fifteen (15) days of the
receipt by the Indemnified Party of such notice; provided, however, that the
failure to provide such notice shall not release an Tendering Stockholders from
any of its obligations under this Section 7 except to the extent that such
Tendering Stockholders is actually prejudiced by such failure. The notice of
claim shall describe in reasonable detail the facts known to the Indemnified
Party giving rise to such indemnification claim, and the amount or good faith
estimate of the amount arising therefrom.
(b) The Tendering Stockholders shall be entitled to assume and control the defense of any Third Party Claim through counsel of its choice (such counsel to be reasonably acceptable to the Indemnified Party) if it gives notice of its intention to do so to the Indemnified Party and acknowledges to the Indemnified Party in writing the Tendering Stockholders' obligation to indemnify the Indemnified Party with respect to all elements of such claim (subject to any limitations on such liability contained in this Agreement); provided, however, under all circumstances and notwithstanding anything in this Agreement to the contrary, the Company shall be entitled to and shall defend such all Third Party Infringement Claims. If, however, the Tendering Stockholders fails or refuses to undertake the defense of such Third Party Claim
within fifteen (15) days after written notice of such claim has been delivered
to the Tendering Stockholders by the Indemnified Party, the Indemnified Party
shall have the right to undertake the defense, compromise and settlement of such
Third Party Claim with counsel of its own choosing (such counsel to be
reasonably acceptable to the Tendering Stockholders) and the costs and expenses
of such defense shall be paid from the Escrow. If the Indemnified Party is
entitled to control the defense of an action, the Tendering Stockholders shall
be entitled to consent to a settlement of, or the stipulation of any judgment
arising from, any such claim or legal proceeding, which consent shall not be
unreasonably withheld or delayed; provided, however, that such consent shall not
be required in connection with a settlement of, or the stipulation of any
judgment arising from a Third Party Infringement Claim. The Indemnified Party
shall cooperate with the Tendering Stockholders in such defense and make
available to the Tendering Stockholders, at the Tendering Stockholders' expense,
all witnesses, pertinent records, materials and information in the Indemnified
Party's possession or under the Indemnified Party's control relating thereto as
is reasonably requested by the Tendering Stockholders. In the event the
Indemnified Party or the Company, as the case may be, is entitled to control the
defense of an action (including a Third Party Infringement Claim), the
Indemnified Party or the Company, as the case may be, shall provide the
Stockholders' Representative with periodic updates regarding the defense of such
actions and such information as the Stockholders' Representative may reasonably
request, provided that such information need not be provided if the Indemnified
Party or the Company, as the case may be, reasonably believes that such
exclusion is necessary to preserve attorney-client, work product or similar
privilege. The Indemnified Party shall be entitled to participate in (but not
control) the defense of any such action, with its counsel (such counsel to be
reasonably acceptable to the Tendering Stockholders) at its own expense;
provided, however, that if there exists a conflict of interest between the
Tendering Stockholders and the Indemnified Party, then the Indemnified Party
shall have the right to engage separate counsel (such counsel to be reasonably
acceptable to the Tendering Stockholders), the reasonable costs and expenses of
which shall be paid from the Escrow, but in no event shall the Tendering
Stockholders be liable for the costs and expenses of more than one such separate
counsel. Except with the written consent of the Indemnified Party (not to be
unreasonably withheld or delayed), the Tendering Stockholders will not, in the
defense of a Third Party Claim, consent to the entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving to the Indemnified Party and the Company by the third party of a release
from all liability with respect to such suit, claim, action, or proceeding.
Notwithstanding the foregoing, however, except with respect to Third Party
Infringement Claims which shall be defended by the Company, the Indemnified
Party shall be entitled to the control of the defense of any such action if it
(i) is reasonably likely to result in liabilities which, taken with other then
existing claims by any of the Indemnified Parties under this Section 7, would
not be fully indemnified hereunder, or (ii) is reasonably likely to result in a
material adverse effect as to the Indemnified Party even if the Tendering
Stockholders pays all indemnification amounts in full.
7.3 Stockholders' Representative.
(a) Michael Gordon (such person and any successor or successors being the "Stockholders' Representative") shall act as the representative of the Tendering Stockholders, and shall be authorized to act on behalf of the Tendering Stockholders and to take any and all actions required or permitted to be taken by the Stockholders' Representative under this
Agreement with respect to any claims (including the settlement thereof) made by an Indemnified Party for indemnification pursuant to this Section 7 and with respect to any actions to be taken by the Stockholders' Representative pursuant to the terms of the Escrow Agreement. The Stockholder Representative shall be entitled to exercise power with respect to the foregoing, including, without limitation, to (i) authorize the delivery of amounts from the Escrow to an Indemnified Party in satisfaction of claims by an Indemnified Party, (ii) agree to, negotiate, enter into settlements and compromises of, and comply with orders of courts with respect to any claims for indemnification, and (iii) take all actions necessary in the judgment of the Stockholders' Representative for the accomplishment of the foregoing. In all matters relating to the foregoing, the Stockholders' Representative shall be the only party entitled to assert the rights of the Tendering Stockholders. The Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Stockholders' Representative. The Stockholders' Representative is not entitled to amend this Agreement or take any actions relating to this Agreement prior to the Closing.
(b) The Tendering Stockholders shall be bound by all actions taken by
the Stockholders' Representative in his capacity thereof, except for any action
that conflicts with the limitations set forth in subsection (d) below. The
Stockholders' Representative shall promptly, and in any event within ten
business days, provide written notice to the Tendering Stockholders of any
action taken on behalf of them by the Stockholders' Representative pursuant to
the authority delegated to the Stockholders' Representative under this Section
7. The Stockholders' Representative shall at all times act in his or her
capacity as Stockholders' Representative in a manner that the Stockholders'
Representative believes to be in the best interest of the Tendering
Stockholders. Neither the Stockholders' Representative nor any of its directors,
officers, agents or employees, if any, shall be liable to any person for any
error of judgment, or any action taken, suffered or omitted to be taken under
this Agreement or the Escrow Agreement, except in the case of its gross
negligence, bad faith or willful misconduct. The Stockholders' Representative
may consult with legal counsel, independent public accountants and other experts
selected by it. The Stockholders' Representative shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or the Escrow Agreement. As to any
matters not expressly provided for in this Agreement or the Escrow Agreement,
the Stockholders' Representative shall not exercise any discretion or take any
action.
(c) Each Tendering Stockholder on whose behalf a portion of its consideration was contributed to the Escrow shall, severally and not jointly, hold harmless and reimburse the Stockholders' Representative from and against such Tendering Stockholder's ratable share of any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by the Stockholders' Representative arising out of or resulting from any action taken or omitted to be taken by the Stockholders' Representative as Stockholder Representative under this Agreement or the Escrow Agreement ("STOCKHOLDER REPRESENTATIVE EXPENSES"), other than such liabilities, losses, damages, claims, costs or expenses (including the reasonable fees and expenses of any legal counsel retained by the Stockholders' Representative) arising out of or resulting from the Stockholders' Representative's gross negligence, bad faith or willful misconduct; provided, however, that no such Tendering Stockholder shall be liable in excess of such Tendering Stockholder's pro rata portion of the Escrow. The Stockholders' Representative shall be entitled to recover up to $500,000 of any Stockholder Representative Expenses paid to third parties from
the Escrow at any time prior to the distribution of funds to the Tendering Stockholders. In the event there are any remaining funds in the Escrow to be distributed to stockholders of the Company immediately prior to the final distribution from the Escrow pursuant to the Escrow Agreement, the Stockholders' Representative shall be entitled to recover any such expenses in excess of $500,000 from the Escrow prior to the distribution of funds to the Tendering Stockholders.
(d) Notwithstanding anything to the contrary herein or in the Escrow Agreement, the Stockholders' Representative is not authorized to, and shall not, accept on behalf of any Tendering Stockholder any consideration to which such Tendering Stockholder is entitled under this Agreement and the Stockholders' Representative shall not in any manner exercise, or seek to exercise, any voting power whatsoever with respect to shares of capital stock of the Company or Purchasers now or hereafter owned of record or beneficially by any Tendering Stockholder unless the Stockholders' Representative is expressly authorized to do so in a writing signed by such Tendering Stockholder.
(e) In the event of the resignation, removal, death or incapacity of the Stockholders' Representative, a successor shall thereafter be appointed by an instrument in writing signed by such successor and by the Tendering Stockholders holding a majority of the outstanding shares of Common Stock of the Company immediately prior to the Closing, and such appointment shall become effective as to any such successor when a copy of such instrument shall have been delivered to Purchasers in accordance with Section 10.5.
8. CONDUCT OF BUSINESSES PENDING THE CLOSING
8.1 Conduct of Business by the Company Pending the Closing. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Company agrees (except to the extent that a majority in interest of the Purchasers shall otherwise consent in writing), to carry on its business in the usual, regular and ordinary course and in substantially the same manner as previously conducted, to use all reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and key employees and consultants and preserve its relationships with customers, suppliers, distributors, licensors, licensees, and others having business dealings with it, to the end that its goodwill and ongoing businesses would be unimpaired, in any material respect, at the Closing. The Company shall promptly notify Purchasers of any material event or occurrence not in the ordinary course of business of the Company. By way of amplification and not limitation, except as contemplated by this Agreement, the Company shall not, between the date of this Agreement and the Closing, do any of the following without the prior written consent of a majority in interest of the Purchasers:
(a) amend or otherwise change its Certificate of Incorporation or Bylaws or equivalent organizational documents;
(b) issue, sell, pledge, dispose of, grant, encumber, authorize or propose the issuance, sale, pledge, disposition, grant or encumbrance of any shares of its capital stock of any class, or any options, warrants, convertible securities or other rights of any kind to acquire any
shares of such capital stock or any other ownership interest (including, without limitation, any phantom interest), of the Company, or accelerate the vesting of any such security, except pursuant to the terms of options, warrants or preferred stock outstanding on the date of this Agreement;
(c) sell, lease, license, pledge, grant, encumber or otherwise dispose of any of its properties or assets which are material, individually or in the aggregate, to its business, except in the ordinary course of business, consistent with past practice;
(d) declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock;
(e) split, combine, subdivide, redeem or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, or purchase or otherwise acquire, directly or indirectly, any shares of its capital stock except from former employees, directors and consultants in accordance with agreements providing for the repurchase of shares in connection with any termination of service by such party, and except in connection with the transactions contemplated hereby;
(f) acquire (including, without limitation, by merger, consolidation, or acquisition of stock or assets) any interest or any assets in any corporation, partnership, other business organization or any division thereof;
(g) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise as an accommodation become responsible for, the obligations of any person, or make any loans or advances; except in the ordinary course of business, consistent with past practice;
(h) enter into any lease or contract for the purchase or sale of any property, real or personal except in the ordinary course of business, consistent with past practice;
(i) increase, or agree to increase, the compensation (cash, equity or otherwise) payable, or to become payable, to its officers or employees, except (A) pursuant to agreements outstanding on the date hereof, (B) as previously disclosed in writing and delivered to Purchasers and (C) with respect to non-officer employees only, such increases as approved by the Company, consistent with past practices and provided that the Company used reasonable efforts to obtain the prior approval of the Purchasers, or grant any severance or termination pay (cash, equity or otherwise) to, or enter into any employment or severance agreement with, any of its directors, officers or other employees, or establish, adopt, enter into or amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other Company Employee Plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer or employee; provided, however, that the foregoing provisions of this subsection shall not apply to any amendments to employee benefit plans described in Section 3(3) of ERISA that may be required by Law;
(j) authorize cash payments in exchange for any options granted under any of such plans except as specifically required by the terms of such plans or any such agreement or
any related agreement in effect as of the date of this Agreement and disclosed in the Schedule of Exceptions;
(k) make or change any material tax election, settle or compromise any tax liability, or consent to the extension or waiver of any statute of limitations with respect to taxes.
8.2 Litigation. The Company shall notify the Purchasers in writing promptly after learning of any material claim, action, suit, arbitration, mediation, proceeding or investigation by or before any court, arbitrator or arbitration panel, board or other governmental entity initiated by it or against it, or known by it to be threatened against it or any of its officers, directors, employees or stockholders in their capacity as such.
8.3 Notification of Certain Matters. Purchasers shall give reasonably prompt notice to the Company, and the Company shall give reasonably prompt notice to Purchasers, of (i) the occurrence, or non-occurrence, of any event the occurrence, or non-occurrence, of which would be likely to cause (x) any representation or warranty contained in this Agreement to be untrue or inaccurate, in any material respect, or (y) any covenant, condition or agreement contained in this Agreement not to be complied with or satisfied, in any material respect; and (ii) any failure or inability of Purchasers or the Company, as the case may be, to comply, in any material respect, with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder.
8.4 Tax Reporting. The parties hereto agree and acknowledge that each party hereto shall (A) take the position for federal income tax purposes and all comparable provisions of state law that the Series B Preferred Stock issued pursuant to this Agreement is not "preferred stock" for purposes of Section 305 of the Code and (B) file all tax returns and reports (including information returns) so as not to include any amount in income of the holder of the Series B Preferred Stock under Section 305(b)(4) or (5) of the Code with respect to the holding or issuance of the Series B Preferred Stock issued pursuant to this Agreement.
9. SATISFACTION OF FUNDING COMMITMENT AND CLOSING CONDITIONS; TERMINATION.
9.1 Satisfaction of Closing Conditions. The Company and the Purchasers shall each use its reasonable best efforts to satisfy the conditions set forth in Section 4, Section 5 and Section 6, respectively.
9.2 Termination Events. This Agreement may be terminated at any time prior to the Closing:
(a) by the mutual written consent of the Company and the Purchasers;
(b) by either the Company or the Purchasers, if the Closing shall not have been consummated by August 30, 2006 for any reason; provided, however, that the right to terminate this Agreement under this Section 9.2(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the failure of the Closing to
occur on or before such date and such action or failure to act constitutes a material breach of this Agreement.
(c) by either Company or the Purchasers, if a governmental entity shall have issued an order, decree or ruling or taken any other action after the date hereof, in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Closing, which order, decree, ruling or other action shall have become final and nonappealable;
(d) by the Company, upon a breach of any representation, warranty,
covenant or agreement on the part of the Purchasers set forth in this Agreement,
or if any representation or warranty of the Purchasers shall have become untrue,
in either case such that the conditions set forth in Section 6.1 or Section 6.2
would not be satisfied as of the time of such breach or as of the time such
representation or warranty shall have become untrue, provided, that if such
inaccuracy in the Purchasers' representations and warranties or breach by the
Purchasers is curable by the Purchasers through the exercise of its commercially
reasonable efforts, then the Company may not terminate this Agreement under this
Section 9.2(d) for thirty (30) days after delivery of written notice from the
Company to the Purchasers of such breach, provided the Purchasers continue to
exercise commercially reasonable efforts to cure such breach or inaccuracy (it
being understood that the Company may not terminate this Agreement pursuant to
this paragraph (d) if such breach or inaccuracy by the Purchasers is cured
during such thirty (30) day period);
(e) by the Purchasers upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, or if any representation or warranty of the Company shall have become untrue, in either case such that the conditions set forth in Section 5.1 or Section 5.2 would not be satisfied as of the time of such breach or as of the time such representation or warranty shall have become untrue, provided, that if such inaccuracy in the Company's representations and warranties or breach by the Company is curable by the Company through the exercise of its commercially reasonable efforts, then the Purchasers may not terminate this Agreement under this Section 9.2(e) for thirty (30) days after delivery of written notice from the Purchasers to the Company of such breach, provided the Company continues to exercise commercially reasonable efforts to cure such breach or inaccuracy (it being understood that the Purchasers may not terminate this Agreement pursuant to this paragraph (e) if such breach or inaccuracy by the Company is cured during such thirty (30)-day period);
(f) by the Purchasers, if a Material Adverse Effect has occurred prior to the Funding Commitment Date with respect to the Company and its subsidiaries taken as a whole; provided, that if such Material Adverse Effect is curable by the Company or any of its subsidiaries through the exercise of its commercially reasonable efforts, then the Purchasers may not terminate this Agreement under this Section 9.2(f) for thirty (30) days after delivery of written notice from the Purchasers to the Company of such Material Adverse Effect, provided the Company continues to exercise commercially reasonable efforts to cure such Material Adverse Effect (it being understood that the Purchasers may not terminate this Agreement pursuant to this paragraph (f) if such Material Adverse Effect is cured during such thirty (30)-day period).
10. MISCELLANEOUS.
10.1 Transfer; Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except for the persons intended to be benefited pursuant to Section 7 or as expressly provided in this Agreement.
10.2 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
10.3 Counterparts. This Agreement may be executed in two or more counterparts and by facsimile, each of which shall be deemed an original and all of which together shall constitute one instrument.
10.4 Titles and Subtitle. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
10.5 Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight courier or sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient (if not, then on the next business day), or forty-eight (48) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, addressed to the party to be notified at such party's address as set forth on the signature page hereto, with a copy to Wilson Sonsini Goodrich & Rosati, P.C., 650 Page Mill Road, Palo Alto, CA 94304, Attn: Mark L. Reinstra and to Goldman Sachs & Co., One New York Plaza, 30th Floor, NY, NY 10004, Attn: Ben Adler, or as subsequently modified by written notice, and if to the Company, with a copy to Heller Ehrman LLP, 275 Middlefield Road, Menlo Park, CA 94025, Attn: Jon Gavenman.
10.6 Finder's Fees. Each party represents that, except as set forth in the Schedule of Exceptions, it neither is nor will be obligated for any finder's fee or commission in connection with this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation in the nature of a finder's fee (and the costs and expenses of defending against such liability or asserted liability) for which each Purchaser or any of its officers, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless each Purchaser from any liability for any commission or compensation in the nature of a finder's fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.
10.7 Fees. If the Closing is effected, the Company will pay the reasonable fees and expenses of Wilson Sonsini Goodrich & Rosati, PC, special legal counsel to the GS Entities (defined below), KPMG LLP and McKinsey & Company, If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of any of the Transaction
Agreements, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
10.8 Amendments and Waiver. Any term of this Agreement may be amended or waived only with the written consent of the Company and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Stock purchased hereunder; provided, however, that (a) any amendment to or waiver of Sections 1.4(c) and 7 shall require the consent of the Stockholders' Representative and (b) any amendment to or waiver of Section 10.12 shall require the consent of the majority of the Board of Directors, including the approval of a majority of the Common Directors, as such term is defined by the Restated Certificate. Any amendment or waiver effected in accordance with this Section 10.8 shall be binding upon the Purchasers and each transferee of the Stock, each future holder of all such Stock, and the Company.
10.9 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
10.10 Delays or Omission. No delay or omission to exercise any right, power or remedy accruing to any party under this Agreement, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such non-breaching or non-defaulting party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.
10.11 Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements relating to the subject matter hereof existing between the parties hereto are expressly canceled.
10.12 Confidentiality. Each Purchaser agrees, during the period ending five
(5) years from the date hereof, severally and not jointly, to use, and to use
commercially reasonable efforts to ensure that its authorized representatives
use, the same degree of care as such Purchaser uses to protect its own
confidential information to keep confidential any information furnished to it
which the Company identifies in writing as being proprietary or confidential
except such information that (a) was in the public domain prior to the time it
was furnished to such Purchaser, (b) is or becomes (through no willful improper
action or inaction by such Purchaser) generally available to the public, (c) was
in its possession or known by such Purchaser without
restriction prior to receipt from the Company, (d) was rightfully disclosed to
such Purchaser by a third party without restriction or (e) was independently
developed without any use of the Company's confidential information.
Notwithstanding the foregoing, each Purchaser may disclose such proprietary or
confidential information to (i) any former partner who has retained an economic
interest in such Purchaser, current or prospective partner, limited partner,
general partner or management company of such Purchaser (or any employee or
representative of any of the foregoing) (each of the foregoing persons, a
"PERMITTED DISCLOSEE") or (ii) a person acting as an advisor to Purchaser, or a
potential co-investor with Purchaser, except with the consent of the Company or
pursuant to a subpoena, Civil Investigative Demand (or similar process), order,
statute, rule or other legal requirement promulgated or imposed by a court or by
a judicial, regulatory, self-regulatory or legislative body, organization,
agency or committee or otherwise in connection with any judicial or
administrative proceeding (including, in response to oral questions,
interrogatories or requests for information or documents) in which a Permitted
Disclosee is involved. Furthermore, nothing contained herein shall prevent any
Purchaser or Permitted Disclosee from (a) entering into any business, entering
into any agreement with a third party, or investing in or engaging in investment
discussions with any other company (whether or not competitive with the
Company), provided that such Purchaser or Permitted Disclosee does not, except
as permitted in accordance with this Section 10.12, disclose any proprietary or
confidential information of the Company in connection with such activities, or
(b) making any disclosures required by law, rule, regulation or court or other
governmental order. Notwithstanding the provisions of this Section 10.12, in the
event that the Company and a Purchaser have executed a nondisclosure agreement
relating to the subject matter of this Agreement, such nondisclosure agreement
shall govern the confidentiality obligations of the Company and such Purchaser
and shall supercede the provisions of this Section 10.12.
10.13 Exculpation Among Purchasers. Each Purchaser acknowledges that it is not relying upon any person, firm or corporation, other than the Company and its officers and directors, in making its investment or decision to invest in the Company. Each Purchaser agrees that no Purchaser nor the respective controlling persons, officers, directors, partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action heretofore or hereafter taken or omitted to be taken by any of them in connection with the purchase of the Stock.
10.14 Survival of Warranties. Except with respect to Section 2.2, Section
2.16 and Section 10.12, the warranties, representations and covenants of the
Company and the Purchasers contained in or made pursuant to this Agreement shall
survive for a period of 18 months after the Closing and shall in no way be
affected by any investigation of the subject matter thereof made by or on behalf
of the Purchasers or the Company. The representations, warranties and covenants
of the Company and the Purchasers set forth in Section 2.2, Section 2.16 and
Section 10.12 shall survive the Closing. Except as set forth in Section
7.1(b)(vi), nothing contained in Section 7 or elsewhere herein shall be
construed to limit the Purchasers' ability to seek recourse against the Company
for breaches of any surviving representation, warranty and covenant.
10.15 Specific Enforcement. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any other party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining
order. Further, each party hereto waives any claim or defense that there is an adequate remedy at law for such breach or threatened breach.
10.16 Other Engagements and Activities. The investment in the Company being made by certain investment funds affiliated with The Goldman Sachs Group, Inc. ("GS GROUP") (each, a "GS ENTITY") pursuant to this Agreement is being made notwithstanding any engagement, prior to or subsequent to the date hereof by the Company of any affiliate of GS Group as financial advisor, agent or underwriter to the Company, and none of the other Purchasers hereto have relied on GS Group to make their investment decision to purchase any Shares.
10.17 No Promotion. Except as required by Law, the Company agrees that
neither it nor any of its directors, officers, employees, agents or
representatives will, without the prior written consent of GS Group, (i) use in
advertising, publicity, or otherwise the name of The Goldman Sachs Group, Inc.
or Goldman, Sachs & Co., or any GS Entity or any partner or employee thereof,
nor any trade name, trademark, trade device, service mark, symbol or any
abbreviation, contraction or simulation thereof owned by GS Group or any of its
affiliates, or (ii) represent, directly or indirectly, that any product or any
service provided by the Company has been approved or endorsed by GS Group,
Goldman Sachs & Co. or any GS Entity. Notwithstanding the foregoing, so long as
the GS Entities are stockholders of the Company, the Company and any Purchaser
may disclose that the GS Entities are stockholders of the Company and the amount
or percentage of Company securities held by the GS Entities. In the event the
Company or any of its subsidiaries is required to make a filing with any
Governmental Authority (as defined below) that references any of the GS Entities
(or their affiliates) or contains information relating to any of the GS Entities
(or their affiliates) (the "GS INFORMATION"), the Company shall (i) furnish a
copy of such filing to the GS Group as promptly as practicable prior to the time
the Company makes such filing and (ii) consult with the GS Group with respect to
the disclosure of the GS Information in such filing. For purposes of this
Section 10.17, "Governmental Authority" shall mean any supernational, national,
foreign, federal, state or local judicial, legislative, executive,
administrative or regulatory body or authority. This Section 10.17 shall survive
termination of this Agreement.
10.18 Exclusivity. Until the earliest of (a) the Closing or (b) the termination of this Agreement pursuant to Section 9, the Company will not, and will cause any person acting on its behalf not to, directly or indirectly solicit, negotiate with respect to, facilitate, or accept any offers for the purchase of, or sell or transfer (whether by merger, consolidation, or otherwise), any shares of capital stock, or options or warrants to purchase any such stock or any securities convertible into or exchangeable for any such stock and shall terminate any existing activities or discussions with any party other than the Purchasers and their representatives, and the Company shall promptly advise the Purchasers of any inquiry or proposal relating thereto that may be received, including the terms of the proposal and identity of the inquirer or offeror.
* * *
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
COMPANY:
LIMELIGHT NETWORKS, INC.
By: /s/ William Rinehart ------------------------------------ William Rinehart Chief Executive Officer |
STOCKHOLDERS' REPRESENTATIVE:
/s/ Michael Gordon ---------------------------------------- Michael Gordon |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V OFFSHORE FUND,
L.P.
BY: GSCP V Offshore Advisors, L.L.C.
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V GmbH & CO. KG
BY: GS Advisors V. L.L.C.
its Managing Limited Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V INSTITUTIONAL,
L.P.
BY: GS Advisors V, L.L.C.
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC. SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT |
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
THE SAN DOMENICO TRUST UDT DATED
AUGUST 12, 1999
By: /s/ Susan Reinstra ------------------------------------ Name: Susan Reinstra Title: TRUSTEE |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
WS INVESTMENT COMPANY, LLC (2006A)
By: /s/ Ken Clark ------------------------------------ Name: Ken Clark Title: Member |
WS INVESTMENT COMPANY, LLC (2006C)
By: /s/ Ken Clark ------------------------------------ Name: Ken Clark Title: Member |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
PURCHASER:
FOR INDIVIDUAL:
/s/ Jon Gavenman ---------------------------------------- Signature |
Jon Gavenman Print Name
Address 288 N. Avalon Drive Los Altos, CA 94022
FOR ENTITY:
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
PURCHASER:
FOR INDIVIDUAL:
/s/ Mark Windfield - Hansen ---------------------------------------- Signature |
Mark Windfield - Hansen Print Name
Address: 918 Dunston Rd.
Redwood City, CA 94062
FOR ENTITY:
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
PURCHASER:
FOR INDIVIDUAL:
FOR ENTITY:
VLGI 2006
Printed Name of Entity
By: /s/ Mark Royer ------------------------------------ Signature |
Mark Royer, Fund Manager Printed Name and Title
Address: 275 MIDDLEFIELD ROAD
WENLO PARK, CA 94025
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
The parties have executed this Series B Convertible Preferred Stock Purchase Agreement as of the date first written above.
PURCHASER:
FOR INDIVIDUAL:
/s/ Steven Tonsfeldt ---------------------------------------- Signature |
Steven Tonsfeldt Print Name
Address: 75 Holbrook Lane Atherton, CA 94027
FOR ENTITY:
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
LIMELIGHT NETWORKS, INC.
FIRST AMENDMENT TO
SERIES B CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Amendment to the Series B Convertible Preferred Stock Purchase Agreement is made as of the 22nd day of June, 2006, by and among Limelight Networks, Inc., a Delaware corporation (the "COMPANY") and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Company's Series B Preferred Stock to be purchased pursuant to the Series B Convertible Preferred Stock Purchase Agreement dated as of May 18, 2006 (the "PURCHASE AGREEMENT," and such holders, the "INITIAL PURCHASERS").
RECITALS
A Pursuant to Section 10.8 of the Purchase Agreement, any term of the Purchase Agreement may be amended or waived only with the written consent of the Company and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Series B Preferred Stock purchased thereunder.
B. The Company and the Initial Purchasers wish to amend the Purchase Agreement to provide for, among other things, an increase in the Offering Funds (as defined therein), subsequent revisions of the schedule of purchasers, clarification of the indemnification obligations of the Tendering Stockholders (as defined therein) and such other changes as set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. Increase in Offering Funds. The reference to "$100,000,000" in the definition of Offering Funds as provided in Section 1.4(a) of the Purchase Agreement is hereby replaced with "$102,300,000."
2. Clarification of Indemnification Obligation. Section 7.l(b)(i) of the Purchase Agreement is hereby replaced in its entirety to read as follows:
"7.1(b)(i) Except with respect to indemnification claims for Losses
based on fraud, willful misconduct or intentional misrepresentation
(x) the Escrow shall be the sole and exclusive right and remedy for
any Losses arising out of any and all claims relating to the subject
matter of this Agreement, and (y) the maximum amount that may be
recovered from any single Tendering Stockholder shall be limited to
such stockholder's pro-rata share of the Escrow, and with respect to
indemnification claims for Losses based on fraud, willful misconduct
or intentional misrepresentation (A) of a Tendering Stockholder, the
sole and exclusive right and remedy
for any such Losses shall be against such Tendering Stockholder and
(B) of the Company, to the extent that the Tendering Stockholder's are
held liable therefor, the maximum amount that may be recovered from
any single Tendering Stockholder shall be limited to such
stockholder's pro-rata share of the Offering Funds used for the
Repurchase; provided, however, that if such Tendering Stockholder
shall have had knowledge of such fraud, willful misconduct or
intentional misrepresentation, the limitation in this Section
7.l(b)(i) shall not apply."
3. New Condition to Closing. The currently existing provisions of Section 4.4 of the Purchase Agreement relating to, among other things, requirements under the Hart-Scott-Rodino Act, shall be moved to a new Section 5.10 of the Purchase Agreement and Section 4.4 shall now read "[Intentionally Omitted]".
4. Revised Schedule of Purchasers. Until the Closing (as defined in the Purchase Agreement), upon the mutual consent of the Company and the holders of a majority in interest held by the Initial Purchasers, the Schedule of Purchasers may be amended to revise the parties listed thereto and the amounts of investment to which any Purchaser (including an Initial Purchaser) may be entitled to purchase; provided however, that in no event may the Schedule of Purchasers be amended such that the Company is obligated to sell more than 25,557,661 shares of Series B Preferred Stock. Upon the delivery to the Company of a signature page to the Purchase Agreement, any additional parties (as approved upon mutual consent of the Company and the holders of a majority in interest held by the Initial Purchasers) added to the Schedule of Purchasers shall be considered "Purchasers" for the purposes of the Purchase Agreement.
5. Allan Kaplan Employment Agreement. All references to a "consulting" agreement in Section 4.19 shall be deemed to be replaced with references to "employment" agreement.
6. Original Agreement. Except as set forth above, the remainder of the Purchase Agreement shall remain in full force and effect and shall be binding on all parties thereto.
7. Counterparts. This First Amendment to Series B Convertible Preferred Stock Purchase Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have executed this First Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
COMPANY:
LIMELIGHT NETWORKS, INC.
By: /s/ William Rinehart ------------------------------------ William Rinehart Chief Executive Officer |
PURCHASERS:
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C.
its General Partner
GS CAPITAL PARTNERS V OFFSHORE FUND,
L.P.
BY: GSCP V Offshore Advisors, L.L.C.
its General Partner
GS CAPITAL PARTNERS V GMBH & CO. KG
BY: GS Advisors V. L.L.C.
its Managing Limited Partner
GS CAPITAL PARTNERS V INSTITUTIONAL,
L.P.
BY: GS Advisors V, L.L.C.
its General Partner
[Signature Page to First Amendment to Series B Convertible Preferred Stock Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this First Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
COMPANY:
LIMELIGHT NETWORKS, INC.
PURCHASERS:
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C.
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ NAME: JOSEPH P. DISABATO TITLE: MANAGING DIRECTOR |
GS CAPITAL PARTNERS V OFFSHORE FUND,
L.P.
BY: GSCP V Offshore Advisors, L.L.C.
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ NAME: JOSEPH P. DISABATO TITLE: MANAGING DIRECTOR |
GS CAPITAL PARTNERS V GMBH & CO. KG
BY: GS Advisors V. L.L.C.
its Managing Limited Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ NAME: JOSEPH P. DISABATO TITLE: MANAGING DIRECTOR |
GS CAPITAL PARTNERS V
INSTITUTIONAL, L.P.
BY: GS Advisors V, L.L.C.
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ NAME: JOSEPH P. DISABATO TITLE: MANAGING DIRECTOR |
[Signature Page to First Amendment to Series B Convertible Preferred Stock Purchase Agreement]
IN WITNESS WHEREOF, the parties have executed this First Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
STOCKHOLDERS' REPRESENTATIVE:
/s/ Michael Gordon ---------------------------------------- Michael Gordon |
[Signature Page to First Amendment to Series B Convertible Preferred Stock Purchase Agreement]
LIMELIGHT NETWORKS, INC.
SECOND AMENDMENT TO
SERIES B CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Second Amendment to the Series B Convertible Preferred Stock Purchase Agreement (the "AMENDMENT") is made as of the 11th day of July, 2006, by and among Limelight Networks, Inc., a Delaware corporation (the "COMPANY"), the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Company's Series B Preferred Stock to be purchased pursuant to the Series B Convertible Preferred Stock Purchase Agreement dated as of May 18, 2006 and amended as of June 22, 2006 (the "PURCHASE AGREEMENT," and such holders, the "INITIAL PURCHASERS"), and the Stockholders' Representative (as defined in Section 7 of the Purchase Agreement).
RECITALS
A Pursuant to Section 10.8 of the Purchase Agreement, any term of the Purchase Agreement may be amended or waived only with the written consent of the Company and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Series B Preferred Stock purchased thereunder.
B. The Company and the Initial Purchasers wish to further amend the Purchase Agreement to provide for, among other things, a potential increase in the number of shares of Series B Stock (as defined therein) issued and sold pursuant to the Purchase Agreement, the ability to hold multiple closings, a potential increase in the Offering Funds (as defined therein), and such other changes as set forth herein.
AGREEMENT
The parties hereby agree as follows:
1. INCREASE IN FINANCING. Section 1.1(b) of the Purchase Agreement is hereby replaced in its entirety to read as follows:
"1.1(b) Subject to the terms and conditions of this Agreement, each Purchaser, severally and not jointly, agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series B Convertible Preferred Stock (the "SERIES B STOCK") listed opposite such Purchaser's name on Exhibit A attached hereto at a purchase price of $4.8909 per share (the "SERIES B PRICE") for an aggregate sale of a minimum of 25,557,664 shares and a maximum of 26,579,976 shares of Series B Stock for an aggregate purchase price of at least $124,999,978.90 and up to $130,000,004.62 (the "PROCEEDS"). The shares of Series B Stock issued to each Purchaser pursuant to this Agreement are hereinafter referred to as the "STOCK.""
2. SUBSEQUENT CLOSINGS.
(a) Section 1.2 of the Purchase Agreement is hereby replaced in its entirety to read as follows:
"1.2. Closing; Delivery.
(a) Subject to the satisfaction of Sections 5 and 6 hereof, the purchase and sale of the Stock shall take place at the offices of Heller Ehrman LLP, 275 Middlefield Rd., Menlo Park, CA 94025, at 10:00 a.m. (San Francisco time), no later than the first business day following the satisfaction or waiver of the conditions set forth in Sections 5 and 6 hereof; or at such other time and place as the Company and the Purchasers purchasing a majority of the Stock mutually agree upon, orally or in writing (which time and place are designated as the "INITIAL CLOSING"). In the event there is more than one closing, the term "Closing" shall apply to each such closing unless otherwise specified herein.
(b) At each Closing, the Company shall deliver to each Purchaser a certificate representing the Stock being purchased thereby against payment of the purchase price by check payable to the Company or wire transfer to the Company's bank account or the Exchange Agent pursuant to the provisions of Section 1.4(a).
(c) If less than 26,579,976 shares of Series B Stock are sold at the Initial Closing, the Company shall have the right, any time within 90 days of the Initial Closing, to sell such remaining shares of Series B Stock to one or more additional purchasers as mutually agreed upon by the Company, the majority of the Board of Directors of the Company, including a majority of the Common Directors (as such term is defined by the Restated Certificate) and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Series B Stock purchased hereunder, or to any Purchaser hereunder who wishes to acquire additional shares of Series B Stock at the price and on the terms set forth herein, provided that any such additional purchaser shall (i) become a party to this Agreement, the Stockholders' Agreement and the Investors' Rights Agreement (each as defined in Section 2.2(e) below), and (ii) have the rights and obligations hereunder and thereunder, by executing and delivering to the Company an additional counterpart signature page to each of such agreements. Any additional purchaser so acquiring shares of Series B Stock shall be considered a "Purchaser" for purposes of this Agreement, and any Series B Stock so acquired by such additional purchaser shall be considered "Series B Stock" for purposes of this Agreement, the Stockholders' Agreement and the Investors' Rights Agreement. Promptly after each Closing pursuant to this Section 1.2(c), Exhibit A will be amended to list the Purchasers in that Closing, including
the name of each Purchaser, the number of shares of Series B Stock purchased and the aggregate Series B Price paid for such shares."
2.2 The conditions set forth in each of Sections 5.6 [Opinion of
Counsel], 5.7 [Board of Directors], 5.8 [Closing of Offer to Purchase] and 5.9
[Funding Commitment Date Deliverables] shall only apply to the Initial Closing.
3. INCREASE IN OFFERING FUNDS. The reference to "$102,300,000" in the definition of Offering Funds as provided in Section 1.4(a) of the Purchase Agreement is hereby replaced with "a minimum of $102,150,000, and up to $103,500,000 as mutually agreed by the Company and the Purchasers purchasing a majority of the Stock hereunder,".
4. ESCROW CLARIFICATION. The Company hereby confirms that any claims, liabilities, losses, damages, costs, deficiencies, expenses and penalties incurred by the Company in connection with the lawsuit filed by Akamai Technologies against the Company shall be deemed Losses under the Purchase Agreement and the Purchasers shall be indemnified with respect thereto to the extent provided in and pursuant and subject to the provisions of Section 7 of the Purchase Agreement.
5. CHANGE IN AUTHORIZED SHARES.
(a) Section 2.2(a) shall be amended such that all references to "30,214,000" with respect to the number of authorized shares of Preferred Stock are hereby replaced with "33,314,000" and all references to "25,600,000" with respect to the number of authorized shares of Series B Preferred Stock are hereby replaced with "28,700,000."
(b) Section 2.2(b) shall be amended such that all references to "77,000,000" with respect to the number of authorized shares of Common Stock are hereby replaced with "80,100,000."
6. SECOND QUARTER REVENUE. Section 2.32 shall be amended and restated in its entirety to read as follows:
"2.32 Second Quarter Revenue.
The Company's revenue, as reported on its financial statements, for the period from April 1, 2006 through June 30, 2006 shall have been no less than $14.9 million, as calculated consistent with past practices."
7. AMENDMENT PROVISION. Subclause (b) of Section 10.8 shall be amended to read as follows:
"(b) any amendment to or waiver of Sections 1.1, 1.2 or 10.12 shall require the consent of the majority of the Board of Directors, including the approval of a majority of the Common Directors, as such term is defined by the Restated Certificate."
8. MISCELLANEOUS
(a) Except as set forth above, the remainder of the Purchase Agreement shall remain in full force and effect and shall be binding on all parties thereto. All capitalized terms not defined herein shall have the meanings ascribed in the Purchase Agreement.
(b) This Amendment and the rights and obligations of the parties hereunder shall inure to the benefit of, and be binding upon, their respective successors, assigns and legal representatives.
(c) If one or more provisions of this Amendment are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, the (i) such provision shall be excluded from this Amendment, (ii) the balance of the Amendment shall be interpreted as if such provision were so excluded and (iii) the balance of the Amendment shall be enforceable in accordance with its terms.
(d) This Amendment and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
(e) This Amendment 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.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
COMPANY:
LIMELIGHT NETWORKS, INC
By: /s/ William H. Rinehart ------------------------------------ William H. Rinehart Chief Executive Officer |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SECOND AMENDMENT TO SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
STOCKHOLDERS' REPRESENTATIVE:
/s/ Michael Gordon ---------------------------------------- Michael Gordon |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SECOND AMENDMENT TO SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
PURCHASERS:
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C.
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ Name: Joseph P. DiSabato Title: Managing Director |
GS CAPITAL PARTNERS V OFFSHORE FUND,
L.P.
BY: GSCP V Offshore Advisors, L.L.C
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ Name: Joseph P. DiSabato Title: Managing Director |
GS CAPITAL PARTNERS V GMBH & CO. KG
BY: GS Advisors V. L.L.C.
its Managing Limited Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ Name: Joseph P. DiSabato Title: Managing Director |
GS CAPITAL PARTNERS V INSTITUTIONAL,
L.P.
BY: GS Advisors V, L.L.C.
its General Partner
BY: /s/ Joseph P. DiSabato ------------------------------------ Name: Joseph P. DiSabato Title: Managing Director |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
SECOND AMENDMENT TO SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
LIMELIGHT NETWORKS, INC.
THIRD AMENDMENT TO
SERIES B CONVERTIBLE PREFERRED STOCK
PURCHASE AGREEMENT
This Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement (the "AMENDMENT") is made as of the 15th day of September, 2006, by and among Limelight Networks, Inc., a Delaware corporation (the "COMPANY"), the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Company's Series B Preferred Stock to be purchased pursuant to the Series B Convertible Preferred Stock Purchase Agreement dated as of May 18, 2006 and amended as of June 22, 2006 and July 11, 2006 (the "PURCHASE AGREEMENT," and such holders, the "INITIAL PURCHASERS") and the Stockholders' Representative (as defined in Section 7 of the Purchase Agreement).
RECITALS
A. Pursuant to Section 10.8 of the Purchase Agreement, any term of the Purchase Agreement may be amended or waived only with the written consent of the Company and the holders of at least a majority of the shares of Common Stock issued or issuable upon conversion of the Series B Preferred Stock purchased thereunder; provided, however, that any amendment to or waiver of Section 7 shall require the consent of the Stockholders' Representative.
B. The Company, the Initial Purchasers and the Stockholders' Representative wish to further amend the Purchase Agreement to clarify certain of the escrow provisions.
AGREEMENT
The parties hereby agree as follows:
1. ESCROW CLARIFICATION. Section 7.1(b)(iii) is amended and restated in its entirety to read as follows:
"(iii) with respect only to any alleged inaccuracy or alleged breach of
Section 2.8 hereof, the following provisions shall apply: with respect to any
claim by a third party alleging infringement of its Intellectual Property Rights
or otherwise alleging facts that would constitute a breach of Section 2.8 hereof
(the "THIRD PARTY INFRINGEMENT CLAIM"), the Company shall bear the expenses for
defending and settling any such Third Party Infringement Claim; provided that
upon the occurrence of the Company incurring expenses in excess of $500,000 with
respect to all such Third Party Infringement Claims ("EXCESS IP EXPENSES"), such
Excess IP Expenses shall be deemed to be Losses and be aggregated with all
Losses until the Escrow Basket amount has been reached; provided however, that
all claims, liabilities, losses, damages, costs, deficiencies, expenses and
penalties incurred by the Company in connection with the lawsuit filed by Akamai
Technologies against the Company and any future disputes between the Company and
Akamai Technologies during the Escrow Period (the "AKAMAI EXPENSES") shall be
deemed to be Excess IP Expenses and shall be deemed to be Losses and shall be
payable by the Tendering
Stockholders to the Company out of the Escrow without regard to the Escrow Basket but such Akamai Expenses shall be subject to the 50% payment allocation as set forth in the following sentence. After the Escrow Basket amount has been reached (or with respect to all Akamai Expenses), 50% of any further Excess IP Expenses (including all Akamai Expenses) incurred by the Company shall be payable by the Tendering Stockholders to the Company out of the Escrow. All such payments of further Excess IP Expenses (including Akamai Expenses) pursuant to this Section 7.1(b)(iii) shall be made by Escrow Agent to the Company upon notice from the Company that the Company has incurred such further Excess IP Expenses. For purposes of determining if a claim or expense should be included in calculating the aggregate value of the claims and expenses with respect to satisfying the aforementioned $500,000 threshold (to the extent applicable) and the Excess IP Expenses, if any, no individual claim or expense with a value of less than $15,000 shall be included, however, related claims of any size shall be treated as one "claim" and shall be aggregated to determine if such claim exceeds the $15,000 threshold; and thus should be applied toward the $500,000 threshold (if applicable) and included in the Excess IP Expenses;"
2. MISCELLANEOUS
(a) Except as set forth above, the remainder of the Purchase Agreement shall remain in full force and effect and shall be binding on all parties thereto. All capitalized terms not defined herein shall have the meanings ascribed in the Purchase Agreement.
(b) This Amendment and the rights and obligations of the parties hereunder shall inure to the benefit of, and be binding upon, their respective successors, assigns and legal representatives.
(c) If one or more provisions of this Amendment are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, the (i) such provision shall be excluded from this Amendment, (ii) the balance of the Amendment shall be interpreted as if such provision were so excluded and (iii) the balance of the Amendment shall be enforceable in accordance with its terms.
(d) This Amendment and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of Delaware, without giving effect to principles of conflicts of law.
(e) This Amendment 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.
[Signatures Follow]
IN WITNESS WHEREOF, the parties have executed this Third Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
COMPANY:
LIMELIGHT NETWORKS, INC.
By: /s/ William H. Rinehart ------------------------------------ William H. Rinehart Chief Executive Officer |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
THIRD AMENDMENT TO SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Third Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
STOCKHOLDERS' REPRESENTATIVE:
/s/ Michael Gordon ---------------------------------------- Michael Gordon |
SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC.
THIRD AMENDMENT TO SERIES B CONVERTIBLE PREFERRED
STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Third Amendment to Series B Convertible Preferred Stock Purchase Agreement on the day and year first set forth above.
PURCHASERS:
GS CAPITAL PARTNERS V FUND, L.P.
BY: GSCP V Advisors, L.L.C.
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V OFFSHORE FUND,
L.P.
BY: GSCP V Offshore Advisors, L.L.C.
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V GMBH & CO. KG
BY: GS Advisors V. L.L.C.
its Managing Limited Partner
BY: /s/ Joseph Gleberman ------------------------------------ |
GS CAPITAL PARTNERS V INSTITUTIONAL,
L.P.
BY: GS Advisors V, L.L.C.
its General Partner
BY: /s/ Joseph Gleberman ------------------------------------ SIGNATURE PAGE TO LIMELIGHT NETWORKS, INC. THIRD AMENDMENT TO SERIES B CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/25, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: AMALIA LIMITED Printed Name of Entity By: /s/ Elias N. Hallak ------------------------------------ Signature Elias N. Hallak Printed Name and Title ATTORNEY-IN-FACT |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/29, 2006 FOR INDIVIDUAL: /s/ Gary Baldus ---------------------------------------- Signature Gary Baldus Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 9/1/2006 FOR INDIVIDUAL: /s/ Wayne Bouchard ---------------------------------------- Signature Wayne Bouchard Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of Aug 29, 2006 FOR INDIVIDUAL: /s/ Andrea Dowd ---------------------------------------- Signature Andrea Dowd Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/31/2006 FOR INDIVIDUAL: /s/ Michael Flatin ---------------------------------------- Signature Michael Flatin Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of August 29, 2006 FOR INDIVIDUAL: /s/ Erik Gabler ---------------------------------------- Signature Erik Gabler Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of August 28, 2006 FOR INDIVIDUAL: /s/ Michael Gordon and Lauren Gordon ---------------------------------------- Signature Michael Gordon and Lauren Gordon Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of Aug 23, 2006 FOR INDIVIDUAL: /s/ Henry Heflich ---------------------------------------- Signature Henry Heflich Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of Sep 4, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: Kaplan Group Investments Printed Name of Entity By: /s/ Allan Kaplan ------------------------------------ Signature Allan Kaplan Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8-23, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: Kay Z Ventures LLC Printed Name of Entity By: /s/ Jason Kay ------------------------------------ Signature JASON KAY, PRESIDENT Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of August 28, 2006 FOR INDIVIDUAL: /s/ Alexander F. Obbard ---------------------------------------- Signature Alexander F. Obbard Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of AUG 28, 2006 FOR INDIVIDUAL: /s/ Wayne Pratt ---------------------------------------- Signature WAYNE PRATT Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby Approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 9.19, 2006 FOR INDIVIDUAL: /s/ Nathan Raciborski ---------------------------------------- Signature Nathan Raciborski Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of August 28, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: Raciborski Group Limited Partnership Printed Name of Entity By: /s/ Nathan Raciborski ------------------------------------ Signature Nathan Raciborski, Partner Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 9.19, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: Rinehart Family Trust Printed Name of Entity By: /s/ William Rinehart ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/28, 2006 FOR INDIVIDUAL: /s/ Noah Ring ---------------------------------------- Signature NOAH RING Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/23, 2006 FOR INDIVIDUAL: /s/ Jim Scannell ---------------------------------------- Signature Jim Scannell Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/24, 2006 FOR INDIVIDUAL: /s/ Lee A Stafford ---------------------------------------- Signature Lee A Stafford Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of August 28, 2006 FOR INDIVIDUAL: ---------------------------------------- Signature ---------------------------------------- Print Name FOR ENTITY: Thunder Road Capital LLC Printed Name of Entity By: /s/ Michael Gordon ------------------------------------ Signature MICHAEL GORDON, MEMBER/MANAGER Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8/29, 2006 FOR INDIVIDUAL: /s/ John C. Wachter ---------------------------------------- Signature JOHN C. WACHTER Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
The undersigned Tendering Stockholder hereby approves the Third Amendment to the Series B Convertible Preferred Stock Purchase Agreement and authorizes the Stockholders' Representative to take all necessary action relating thereto.
Dated as of 8-30-2006 FOR INDIVIDUAL /s/ David Weiss ---------------------------------------- Signature DAVID WEISS Print Name FOR ENTITY: ---------------------------------------- Printed Name of Entity By: ------------------------------------ Signature ---------------------------------------- Printed Name and Title |
Exhibit 10.12
FORM OF
LIMELIGHT NETWORKS, INC.
AT-WILL EMPLOYMENT, CONFIDENTIAL INFORMATION,
INVENTION ASSIGNMENT,
AND ARBITRATION AGREEMENT
As a condition of my employment with Limelight Networks, Inc. its subsidiaries, affiliates, successors or assigns (together the "COMPANY"), and in consideration of my employment with the Company and my receipt of the compensation now and hereafter paid to me by Company, I agree to the following:
1. At-Will Employment.
I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION AND CONSTITUTES "AT-WILL" EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY IS UNAUTHORIZED AND NOT VALID UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OF THE COMPANY. ACCORDINGLY, I ACKNOWLEDGE THAT MY EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD CAUSE OR FOR ANY OR NO CAUSE, AT MY OPTION OR AT THE OPTION OF THE COMPANY, WITH OR WITHOUT NOTICE.
2. Confidential Information.
A. Company Information. I agree at all times during my employment with the Company and thereafter, to hold in the strictest confidence, and not to use, except for the benefit of the Company, or to disclose to any person, firm or corporation without written authorization of the President or the Board of Directors of the Company, any Company Confidential Information. I understand that my unauthorized use or disclosure of Company Confidential Information during my employment will lead to disciplinary action, up to and including immediate termination and legal action by the Company. I understand that "COMPANY CONFIDENTIAL INFORMATION" means any non-public information that relates to the actual or anticipated business, research or development of the Company, or to the Company's technical data, trade secrets or know-how, including, but not limited to, research, product plans or other information regarding the Company's products or services and markets therefor, customer lists and customers (including, but not limited to, customers of the Company on which I called or with which I may become acquainted during the term of my employment), software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances and other business information; provided, however Company Confidential Information does not include any of the foregoing items to the extent the same have become publicly known and made generally available through no wrongful act of mine or of others.
B. Former Employer Information. I agree that during my employment with the Company, I will not improperly use, disclose, or induce the Company to use any proprietary information or trade secrets of any former or concurrent employer or other person or entity. I further agree that I will not bring onto the premises of the Company or transfer onto the Company's
technology systems any unpublished document, proprietary information or trade secrets belonging to any such employer, person or entity unless consented to in writing by both Company and such employer, person or entity.
C. Third Party Information. I recognize that the Company may have received and in the future may receive from third parties associated with the Company, e.g., the Company's customers, suppliers, licensors, licensees, partners, or collaborators ("ASSOCIATED THIRD PARTIES") their confidential or proprietary information ("ASSOCIATED THIRD PARTY CONFIDENTIAL INFORMATION"). By way of example, Associated Third Party Confidential Information may include the habits or practices of Associated Third Parties, the technology of Associated Third Parties, requirements of Associated Third Parties, and information related to the business conducted between the Company and such Associated Third Parties. I agree at all times during my employment with the Company and thereafter, to hold in the strictest confidence, and not to use or to disclose to any person, firm or corporation any Associated Third Party Confidential Information, except as necessary in carrying out my work for the Company consistent with the Company's agreement with such Associated Third Parties. I understand that my unauthorized use or disclosure of Associated Third Party Confidential Information during my employment will lead to disciplinary action, up to and including immediate termination and legal action by the Company.
3. Inventions.
A. Inventions Retained and Licensed. I have attached hereto as Exhibit A, a list describing all inventions, discoveries, original works of authorship, developments, improvements, and trade secrets, which were conceived in whole or in part by me prior to my employment with the Company to which I have any right, title or interest, and which relate to the Company's proposed business, products, or research and development ("PRIOR INVENTIONS"); or, if no such list is attached, I represent and warrant that there are no such Prior Inventions. Furthermore, I represent and warrant that the inclusion of any Prior Inventions from Exhibit A of this Agreement will not materially affect my ability to perform all obligations under this Agreement. If, in the course of my employment with the Company, I incorporate into or use in connection with any product, process, service, technology or other work by or on behalf of Company any Prior Invention, I hereby grant to the Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license, with the right to grant and authorize sublicenses, to make, have made, modify, use, import, offer for sale, and sell such Prior Invention as part of or in connection with such product, process, service, technology or other work and to practice any method related thereto.
B. Assignment of Inventions. I agree that I will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks or trade secrets, whether or not patentable or registrable under patent, copyright or similar laws, which I may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time I am in the employ of the Company (including during my off-duty hours), or with the use of Company's equipment, supplies, facilities, or Company Confidential Information (collectively referred to as
"INVENTIONS"). I further acknowledge that all original works of authorship which are made by me (solely or jointly with others) within the scope of and during the period of my employment with the Company and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act. I understand and agree that the decision whether or not to commercialize or market any Inventions is within the Company's sole discretion and for the Company's sole benefit and that no royalty or other consideration will be due to me as a result of the Company's efforts to commercialize or market any such Inventions.
C. Maintenance of Records. I agree to keep and maintain adequate, current, accurate, and authentic written records of all Inventions made by me (solely or jointly with others) during the term of my employment with the Company. The records will be in the form of notes, sketches, drawings, electronic files, reports, or any other format that may be specified by the Company. The records are and will be available to and remain the sole property of the Company at all times.
D. Patent and Copyright Registrations. I agree to assist the Company, or its designee, at the Company's expense, in every proper way to secure the Company's rights in the Inventions and any rights relating thereto in any and all countries, including the disclosure to the Company of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which the Company shall deem proper or necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights and in order to assign and convey to the Company, its successors, assigns, and nominees the sole and exclusive rights, title and interest in and to such Inventions and any rights relating thereto, and testifying in a suit or other proceeding relating to such Inventions and any rights relating thereto. I further agree that my obligation to execute or cause to be executed, when it is in my power to do so, any such instrument or papers shall continue after the termination of this Agreement. If the Company is unable because of my mental or physical incapacity or for any other reason to secure my signature with respect to any Inventions including, without limitation, to apply for or to pursue any application for any United States or foreign patents or copyright registrations covering such Inventions, then I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney in fact, to act for and in my behalf and stead to execute and file any papers, oaths and to do all other lawfully permitted acts with respect to such Inventions with the same legal force and effect as if executed by me.
4. Conflicting Employment.
A. Current Obligations. I agree that during the term of my employment with the Company, I will not engage in or undertake any other employment, occupation, consulting relationship or commitment that is directly related to the business in which the Company is now involved or becomes involved or has plans to become involved, nor will I engage in any other activities that conflict with my obligations to the Company.
B. Prior Relationships. Without limiting Section 4.A, I represent that I have no other agreements, relationships or commitments to any other person or entity that conflict with my obligations to the Company under this Agreement or my ability to become employed and perform
the services for which I am being hired by the Company. I further agree that if I have signed a confidentiality agreement or similar type of agreement with any former employer or other entity, I will comply with the terms of any such agreement to the extent that its terms are lawful under applicable law. I represent and warrant that after undertaking a careful search (including searches of my computers, cell phones, electronic devices and documents), I have returned all property and confidential information belonging to all prior employers. Moreover, in the event that the Company or any of its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor or successor corporations, or assigns is sued based on any obligation or agreement to which I am a party or am bound, I agree to fully indemnify the Company, its directors, officers, agents, employees, investors, shareholders, administrators, affiliates, divisions, subsidiaries, predecessor and successor corporations, and assigns for all verdicts, judgments, settlements, and other losses incurred by the Company (the indemnitee) in the event that it is the subject of any legal action resulting from any breach of my obligations under this Agreement, as well as any reasonable attorneys' fees and costs if the plaintiff is the prevailing party in such an action.
5. Returning Company Documents. Upon separation from employment with the Company or on demand by the Company during my employment, I will immediately deliver to the Company, and will not keep in my possession, recreate or deliver to anyone else, any and all Company property, including, but not limited to, Company Confidential Information, Associated Third Party Confidential Information, as well as all devices and equipment belonging to the Company (including computers, handheld electronic devices, telephone equipment, and other electronic devices), Company credit cards, records, data, notes, notebooks, reports, files, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, photographs, charts, all documents and property, and reproductions of any of the aforementioned items that were developed by me pursuant to my employment with the Company, obtained by me in connection with my employment with the Company, or otherwise belonging to the Company, its successors or assigns, including, without limitation, those records maintained pursuant to Section 3.C. I also consent to an exit interview to confirm my compliance with this Section 5.
6. Termination Certification. Upon separation from employment with the Company, I agree to immediately sign and deliver to the Company the "Termination Certification" attached hereto as Exhibit B. I also agree to keep the Company advised of my home and business address for a period of three (3) years after termination of my employment with the Company, so that the Company can contact me regarding my continuing obligations provided by this Agreement.
7. Notification of New Employer. In the event that I leave the employ of the Company, I hereby grant consent to notification by the Company to my new employer about my obligations under this Agreement.
8. Solicitation of Employees. I agree that for a period of twelve (12) months immediately following the termination of my relationship with the Company for any reason, whether voluntary or involuntary, with or without cause, I shall not either directly or indirectly solicit any of the Company's employees to leave their employment, or attempt to solicit employees of the Company, either for myself or for any other person or entity.
9. Conflict of Interest Guidelines. I agree to diligently adhere all to policies of the Company including the Company's insider's trading policies and the Conflict of Interest Guidelines attached as Exhibit C hereto, which may be revised from time to time during my employment.
10. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment by the Company. I hereby represent and warrant that I have not entered into, and I will not enter into, any oral or written agreement in conflict herewith.
11. Audit. I acknowledge that I have no reasonable expectation of privacy in any computer, technology system, email, handheld device, telephone, or documents that are used to conduct the business of the Company. As such, the Company has the right to audit and search all such items and systems, without further notice to me, to ensure that the Company is licensed to use the software on the Company's devices in compliance with the Company's software licensing policies, to ensure compliance with the Company's policies, and for any other business-related purposes in the Company's sole discretion. I understand that I am not permitted to add any unlicensed, unauthorized or non-compliant applications to the Company's technology systems and that I shall refrain from copying unlicensed software onto the Company's technology systems or using non-licensed software or web sites. I understand that it is my responsibility to comply with the Company's policies governing use of the Company's documents and the internet, email, telephone and technology systems to which I will have access in connection with my employment.
12. Arbitration and Equitable Relief.
A. Arbitration. IN CONSIDERATION OF MY EMPLOYMENT WITH THE COMPANY, ITS PROMISE TO ARBITRATE ALL EMPLOYMENT-RELATED DISPUTES, AND MY RECEIPT OF THE COMPENSATION, PAY RAISES AND OTHER BENEFITS PAID TO ME BY THE COMPANY, AT PRESENT AND IN THE FUTURE, I AGREE THAT ANY AND ALL CONTROVERSIES, CLAIMS, OR DISPUTES WITH ANYONE (INCLUDING THE COMPANY AND ANY EMPLOYEE, OFFICER, DIRECTOR, SHAREHOLDER OR BENEFIT PLAN OF THE COMPANY IN THEIR CAPACITY AS SUCH OR OTHERWISE), WHETHER BROUGHT ON AN INDIVIDUAL, GROUP, OR CLASS BASIS, ARISING OUT OF, RELATING TO, OR RESULTING FROM MY EMPLOYMENT WITH THE COMPANY OR THE TERMINATION OF MY EMPLOYMENT WITH THE COMPANY, INCLUDING ANY BREACH OF THIS AGREEMENT, SHALL BE SUBJECT TO BINDING ARBITRATION IN MARICOPA COUNTY IN THE STATE OF ARIZONA. DISPUTES WHICH I AGREE TO ARBITRATE, AND THEREBY AGREE TO WAIVE ANY RIGHT TO A TRIAL BY JURY, INCLUDE ANY STATUTORY CLAIMS UNDER STATE OR FEDERAL LAW, INCLUDING, BUT NOT LIMITED TO, CLAIMS UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT, THE SARBANES-OXLEY ACT, THE WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT, THE FAMILY AND MEDICAL LEAVE ACT, CLAIMS OF
HARASSMENT, DISCRIMINATION AND WRONGFUL TERMINATION AND ANY STATUTORY CLAIMS. I FURTHER UNDERSTAND THAT THIS AGREEMENT TO ARBITRATE ALSO APPLIES TO ANY DISPUTES THAT THE COMPANY MAY HAVE WITH ME.
B. Procedure. I AGREE THAT ANY ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") AND THAT THE NEUTRAL ARBITRATOR WILL BE SELECTED IN A MANNER CONSISTENT WITH AAA'S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES. I AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO ANY ARBITRATION HEARING. I ALSO AGREE THAT THE ARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS' FEES AND COSTS TO THE PREVAILING PARTY EXCEPT AS PROHIBITED BY LAW. I UNDERSTAND THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARING FEES CHARGED BY THE ARBITRATOR OR AAA EXCEPT THAT I SHALL PAY THE FIRST $125.00 OF ANY FILING FEES ASSOCIATED WITH ANY ARBITRATION I INITIATE. I AGREE THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND THAT TO THE EXTENT THAT THE AAA'S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES CONFLICT WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. I AGREE THAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING. I AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED IN MARICOPA COUNTY, ARIZONA.
C. Remedy. EXCEPT AS PROVIDED BY THE RULES AND THIS AGREEMENT, ARBITRATION SHALL BE THE SOLE, EXCLUSIVE AND FINAL REMEDY FOR ANY DISPUTE BETWEEN ME AND THE COMPANY. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NEITHER I NOR THE COMPANY WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION. NOTWITHSTANDING, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR SHALL NOT ORDER OR REQUIRE THE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW. NOTHING IN THIS AGREEMENT OR IN THIS PROVISION IS INTENDED TO WAIVE THE PROVISIONAL RELIEF REMEDIES AVAILABLE UNDER THE RULES.
D. Administrative Relief. I UNDERSTAND THAT THIS AGREEMENT DOES NOT
PROHIBIT ME FROM PURSUING AN ADMINISTRATIVE CLAIM WITH A LOCAL, STATE OR FEDERAL
ADMINISTRATIVE BODY. THIS AGREEMENT DOES, HOWEVER, PRECLUDE ME FROM PURSUING
COURT ACTION REGARDING ANY SUCH CLAIM.
E. Voluntary Nature of Agreement. I ACKNOWLEDGE AND AGREE THAT I AM
EXECUTING THIS AGREEMENT VOLUNTARILY AND WITHOUT ANY DURESS OR UNDUE INFLUENCE
BY THE COMPANY OR ANYONE ELSE. I FURTHER ACKNOWLEDGE AND AGREE THAT I HAVE
CAREFULLY READ THIS AGREEMENT AND THAT I HAVE ASKED ANY QUESTIONS NEEDED FOR ME
TO UNDERSTAND THE TERMS, CONSEQUENCES AND BINDING EFFECT OF THIS AGREEMENT AND
FULLY UNDERSTAND IT, INCLUDING THAT I AM WAIVING MY RIGHT TO A JURY TRIAL.
FINALLY, I AGREE THAT I HAVE BEEN PROVIDED AN OPPORTUNITY TO SEEK THE ADVICE OF
AN ATTORNEY OF MY CHOICE BEFORE SIGNING THIS AGREEMENT.
13. General Provisions.
A. Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the State of Arizona without giving effect to any choice of law rules or principles that may result in the application of the laws of any jurisdiction other than Arizona. To the extent that any lawsuit is permitted under this Agreement, I hereby expressly consent to the personal jurisdiction of the state and federal courts located in Arizona for any lawsuit filed against me by the Company.
B. Entire Agreement. This Agreement, together with the Exhibits herein, sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and supersedes all prior discussions or representations between us including, but not limited to, any representations made during my interview(s) or relocation negotiations, whether written or oral. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the President of the Company and me. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
C. Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect.
D. Successors and Assigns. This Agreement will be binding upon my heirs, executors, assigns, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns. There are no intended third party beneficiaries to this Agreement except as expressly stated.
E. Waiver. Waiver by the Company of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach.
F. Survivorship. The rights and obligations of the parties to this Agreement will survive termination of my employment with the Company.
G. Signatures. This Agreement may be signed in two counterparts, each of which shall be deemed an original, with the same force and effectiveness as though executed in a single document.
Date: ------------------------------- ---------------------------------------- Signature ---------------------------------------- Name of Employee (typed or printed) Witness: ------------------------------------- Signature ------------------------------------- Name (typed or printed) |
EXHIBIT A
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Identifying Number or Title Date Brief Description ----- ---- --------------------- |
___ No inventions or improvements
___ Additional Sheets Attached
EXHIBIT B
LIMELIGHT NETWORKS, INC.
TERMINATION CERTIFICATION
This is to certify that I do not have in my possession, nor have I failed to return, any devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items belonging to Limelight Networks, Inc., its subsidiaries, affiliates, successors or assigns (together, the "COMPANY").
I further certify that I have complied with all the terms of the Company's At Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement signed by me, including the reporting of any inventions and original works of authorship (as defined therein), conceived or made by me (solely or jointly with others) covered by that agreement.
I further agree that, in compliance with the At Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement, I will preserve as confidential all Company Confidential Information and Associated Third Party Confidential Information including trade secrets, confidential knowledge, data or other proprietary information relating to products, processes, know-how, designs, formulas, developmental or experimental work, computer programs, data bases, other original works of authorship, customer lists, business plans, financial information or other subject matter pertaining to any business of the Company or any of its employees, clients, consultants or licensees.
I also agree that for twelve (12) months from this date, I will not either directly or indirectly solicit, induce, recruit or encourage any of the Company's employees to leave their employment, or to enter into an employment, consulting, contractor, or other relationship with any other person, firm, business entity, or organization (including with myself).
After leaving the Company's employment, I will be employed by _____________________ in the position of: ___________________________.
EXHIBIT C
LIMELIGHT NETWORKS, INC.
CONFLICT OF INTEREST GUIDELINES
It is the policy of Limelight Networks, Inc. to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations which must be avoided. Any exceptions must be reported to the President and written approval for continuation must be obtained.
1. Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended. (The At Will Employment, Confidential Information, Invention Assignment, and Arbitration Agreement elaborates on this principle and is a binding agreement.)
2. Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or otherwise be improper or embarrassing to the Company.
3. Participating in civic or professional organizations that might involve divulging confidential information of the Company.
4. Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or is or appears to be a personal or social involvement.
5. Initiating or approving any form of personal or social harassment of employees.
6. Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such investment or directorship might influence in any manner a decision or course of action of the Company.
7. Borrowing from or lending to employees, customers or suppliers.
8. Acquiring real estate of interest to the Company.
9. Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other person or entity with whom obligations of confidentiality exist.
10. Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.
11. Making any unlawful agreement with distributors with respect to prices.
12. Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.
13. Engaging in any conduct which is not in the best interest of the Company.
Each officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without warning.
Exhibit 10.13
LIMELIGHT NETWORKS, INC.
DAVID HATFIELD EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of March 27, 2007 (the "Effective Date"), by and between Limelight Networks, Inc. (the "Company") and David Hatfield ("Executive").
1. Duties and Scope of Employment.
(a) Positions and Duties. On the Effective Date, Executive will commence service as the Company's Senior Vice President, Sales and Marketing. Executive will report to the Company's Chief Executive Officer (the "CEO"). As of the Effective Date, Executive will render such business and professional services in the performance of his duties, consistent with Executive's position within the Company, as will reasonably be assigned to him by the CEO. The period Executive is employed by the Company under this Agreement is referred to herein as the "Employment Term."
(b) Obligations. During the Employment Term, Executive, except as provided in this Agreement, will devote Executive's full business efforts and time to the Company and will use good faith efforts to discharge Executive's obligations under this Agreement to the best of Executive's ability and in accordance with each of the Company's written corporate guidance and ethics guidelines, conflict of interests policies and code of conduct as the Company may adopt from time to time. For the duration of the Employment Term, Executive agrees not to actively engage in any other employment, occupation, or consulting activity for any direct or indirect remuneration without the prior approval of the CEO (which approval will not be unreasonably withheld); provided, however, that Executive may, without the approval of the CEO, serve in any capacity with any civic, educational, professional, industry or charitable organization, provided such services do not interfere with Executive's obligations to the Company.
(i) Executive hereby represents, warrants and covenants to the Company that as of the Effective Date, Executive will not be a party to any contract, understanding, agreement or policy, written or otherwise, that will be breached by Executive's entering into, or performing services under, this Agreement. Executive further represents that he has disclosed to the Company in writing all threatened, pending, or actual claims that are unresolved and still outstanding as of the Effective Date, in each case, against Executive of which he is aware, if any, as a result of his employment with any previous employer or his membership on any boards of directors.
(c) Other Entities. Executive agrees to serve if appointed, without additional compensation, as an officer and director for each of the Company's subsidiaries, partnerships, joint ventures, limited liability companies and other affiliates, including entities in which the Company has a significant investment as determined by the Company. As used in this
Agreement, the term "affiliates" will mean any entity controlled by, controlling, or under common control of the Company.
2. At-Will Employment. Executive and the Company agree that Executive's employment with the Company constitutes "at-will" employment. Executive and the Company acknowledge that this employment relationship may be terminated at any time, upon written notice to the other party, with or without good cause or for any or no cause, at the option either of the Company or Executive. However, as described in this Agreement, Executive may be entitled to severance benefits depending upon the circumstances of Executive's termination of employment.
3. Compensation.
(a) Base Salary. Commencing with the Effective Date, the Company will pay Executive an annual salary of $250,000 as compensation for his services (such annual salary, as is then effective, to be referred to herein as "Base Salary"). Executive's Base Salary will be subject to annual review (subject to the provisions of Section 10(e)(iii) of this Agreement). The Base Salary will be paid periodically in accordance with the Company's normal payroll practices and will be subject to the usual, required withholdings.
(b) Annual Incentive. Executive will be eligible to receive annual cash incentives payable for the achievement of performance goals (i) established by the Board of Directors of the Company (the "Board") or by the Compensation Committee of the Board (the "Committee") and (ii) reasonably acceptable to Executive. During calendar year 2007, Executive's target annual incentive ("Target Annual Incentive") will be $200,000. The actual earned annual cash incentive, if any, payable to Executive for any performance period will depend upon the extent to which the applicable performance goal(s) specified by the Committee with the input of Executive are achieved.
(c) Equity Awards.
(i) On the Effective Date, the Company will issue to Executive an option to purchase 300,000 shares of Common Stock at a per share exercise price equal to the fair market value on the Effective Date, as determined by an independent valuation dated not more than 30 days prior to the Effective Date (the "Initial Grant"). The Initial Grant will be granted under and subject to the terms, definitions and provisions of the Company's Amended and Restated 2003 Incentive Compensation Plan (the "Plan"). One forty-eighth (1/48th) of the total number of shares of Common Stock subject to the Initial Grant shall vest and become exercisable on the same day as the Effective Date of each calendar month, provided that the Continuous Service (as such term is defined in the Plan) of the Executive continues through and on such date. Except as provided in this Agreement, the Initial Grant will be subject to the Company's standard terms and conditions under the Plan.
(ii) On the Effective Date, the Company will also issue to Executive an option to purchase 125,000 shares of Common Stock at a per share exercise price equal to $18.00 per share (the "$18.00 Option"). The $18.00 Option will be granted under and subject to the terms, definitions and provisions of the Plan. One forty-eighth (1/48th) of the total number of
shares of Common Stock subject to the $18.00 Option shall vest and become exercisable on the same day as the Effective Date of each calendar month thereafter, provided that the Continuous Service (as such term is defined in the Plan) of the Executive continues through and on such date. Except as provided in this Agreement, the $18.00 Option will be subject to the Company's standard terms and conditions for options granted under the Plan.
(iii) On the Effective Date, the Company will also issue to Executive an option to purchase 25,000 shares of Common Stock at a per share exercise price equal to $18.00 per share (the "Bookings Option"). In the event the Company enters into a customer contract with any company listed in Exhibit B hereto with minimum annual revenue to the Company of $5,000,000, 100% of the shares subject to the Bookings Option shall vest and become exercisable. In the event Executive's employment is terminated for any reason prior to this condition being met, or in the event the ten year maximum life of the option is reached and this condition remains unsatisfied, the Bookings Option will expire unvested and unexercisable. Additional companies, other than existing customers of the Company, shall be added to Exhibit B within 30 days after the Effective Date until at least 10 companies are listed. Such additional companies shall be selected by mutual agreement between Executive and the Company, subject to approval by the Committee (which shall not be unreasonably withheld). Except as provided in this Agreement, the Bookings Option will be subject to the Company's standard terms and conditions for options granted under the Plan.
(iv) In the event that the Company consummates a Change of Control transaction, 50% of Executive's then outstanding unvested equity awards, excluding any unvested shares subject to the Bookings Option, will vest.
4. Employee Benefits.
(a) Generally. Executive will be eligible to participate in accordance with the terms of all Company employee benefit plans, policies and arrangements that are applicable to other executive officers of the Company, as such plans, policies and arrangements may exist from time to time.
(b) Vacation. Executive will be entitled to receive paid annual vacation in accordance with Company policy for other senior executive officers, but with vacation accrual of not less than four (4) weeks per year.
5. Expenses. The Company will reimburse Executive for reasonable travel, entertainment and other expenses incurred by Executive in the furtherance of the performance of Executive's duties hereunder, in accordance with the Company's expense reimbursement policy as in effect from time to time. In addition, the Company shall reimburse Executive for up to $5,000 for his expenses in engaging legal counsel to review this Agreement on his behalf. The Company will also reimburse Executive for reasonable expenses actually incurred for periodic travel between the Phoenix area and San Francisco in the furtherance of the performance of Executive's duties hereunder.
6. Termination of Employment. In the event Executive's employment with the Company terminates for any reason, Executive will be entitled to any (a) unpaid Base Salary
accrued up to the effective date of termination; (b) unpaid, but earned and accrued annual incentive for any completed fiscal year as of his termination of employment; (c) pay for accrued but unused vacation; (d) benefits or compensation as provided under the terms of any employee benefit and compensation agreements or plans applicable to Executive; (e) unreimbursed business expenses required to be reimbursed to Executive; and (f) rights to indemnification Executive may have under the Company's Certificate of Incorporation, Bylaws, this Agreement, and/or separate indemnification agreement, as applicable. In the event Executive's employment with the Company terminates for any reason (other than Cause), Executive will be entitled to exercise any vested outstanding stock options for at least twenty-four (24) months after the later of such termination of employment or the date upon which Executive ceases to provide any other services to the Company or any of its affiliates, whether as a director, independent contractor or otherwise, but in no event later than the applicable scheduled expiration date of such award (in the absence of any termination of employment) as set forth in the award agreement. For purposes of clarity, the term "expiration date" shall be the scheduled expiration of the option agreement and not the period that Executive shall be entitled to exercise such option. In addition, if the termination is by the Company without Cause or Executive resigns for Good Reason, Executive will be entitled to the amounts and benefits specified in Section 7.
7. Severance.
(a) Termination Without Cause or Resignation for Good Reason other than in Connection with a Change of Control. If Executive's employment is terminated by the Company without Cause or if Executive resigns for Good Reason, and such termination is not in Connection with a Change of Control, then, subject to Section 8, Executive will receive: (i) continued payment of Executive's Base Salary (subject to applicable tax withholdings) for twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (ii) the current year's Target Annual Incentive pro-rated to the date of termination, with such pro-rated amount to be calculated by multiplying the current year's Target Annual Incentive by a fraction with a numerator equal to the number of days inclusive between the start of the current calendar year and the date of termination and a denominator equal to 365, such amounts to be paid at the same time as similar bonus payments are made to the Company's other executive officers; (iii) reimbursement for premiums paid for continued health benefits for Executive (and any eligible dependents) under the Company's health plans until the earlier of (A) twelve (12) months, payable when such premiums are due (provided Executive validly elects to continue coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA")), or (B) the date upon which Executive and Executive's eligible dependents become covered under similar plans; and (iv) if such termination occurs prior to the one year anniversary of the Effective Date, 50,000 of Executive's unvested options under the Initial Grant shall vest.
(b) Termination Without Cause or Resignation for Good Reason in Connection with a Change of Control. If Executive's employment is terminated by the Company without Cause or by Executive for Good Reason, and the termination is in Connection with a Change of Control, then, subject to Section 8, Executive will receive: (i) continued payment of Executive's Base Salary for the year in which the termination occurs (subject to applicable tax withholdings), for twelve (12) months, such amounts to be paid in accordance with the Company's normal payroll policies; (ii) the payment in an amount equal to 100% of Executive's Target Annual Incentive for the year in which the termination occurs (subject to applicable tax
withholdings), such amounts to be paid in accordance with the Company's normal
payroll policies over the course of twelve (12) months; (iii) 100% of
Executive's then outstanding unvested equity awards, except those that remain
unvested subject to the Bookings Option, will vest, and (iv) reimbursement for
premiums paid for continued health benefits for Executive (and any eligible
dependents) under the Company's health plans until the earlier of (A) twelve
(12) months, payable when such premiums are due (provided Executive validly
elects to continue coverage under COBRA), or (B) the date upon which Executive
and Executive's eligible dependents become covered under similar plans.
(c) Voluntary Termination Without Good Reason or Termination for Cause. If Executive's employment is terminated voluntarily (excluding a termination for Good Reason) or is terminated for Cause by the Company, then, except as provided in Section 6, (i) all further vesting of Executive's outstanding equity awards will terminate immediately; (ii) all payments of compensation by the Company to Executive hereunder will terminate immediately, and (iii) Executive will be eligible for severance benefits only in accordance with the Company's then established plans. In the event that Executive's employment is terminated due to death or Disability, twenty-five percent (25%) of Executive's then unvested options, excluding any unvested shares subject to the Bookings Option, shall vest.
8. Conditions to Receipt of Severance: No Duty to Mitigate.
(a) Separation Agreement and Release of Claims. The receipt of any severance or other benefits pursuant to Section 7 will be subject to Executive signing and not revoking a separation agreement and release of claims in a form reasonably acceptable to the Company. Such agreement shall not require Executive to release claims to the indemnification contemplated by Section 11. No severance or other benefits pursuant to Section 7 will be paid or provided until the separation agreement and release agreement becomes effective.
(b) Non-solicitation and Non-competition. The receipt of any severance
or other benefits pursuant to Section 7 will be subject to Executive agreeing
that during the Employment Term and for twenty-four (24) months thereafter,
Executive will not (i) solicit any employee of the Company (other than
Executive's personal assistant) for employment other than at the Company, or
(ii) directly or indirectly engage in, have any ownership interest in or
participate in any entity that as of the date of termination competes with the
Company in any substantial business of the Company or any business reasonably
expected to, become a substantial business of the Company. If Executive violates
this Section 8(b), the Company's sole form of recourse will be to terminate any
future payments or benefits owed to Executive pursuant to Section 7 of this
Agreement. Executive's passive ownership of not more than 1% of any publicly
traded company and/or 5% ownership of any privately held company will not
constitute a breach of this Section 8(b). Public solicitation, such as by taking
out ads in a newspaper, advertising on the web and the like, not specifically
aimed at employees of the Company, will not constitute a breach of this Section
8(b). Clause (ii) of this Subsection (b) shall not preclude Executive from being
employed by an entity with multiple separate business units, as long as the
business unit in which Executive is employed does not compete with the Company
in any substantial business of the Company, or any business reasonably expected
to become a substantial business of the Company, as of the date of the
termination of Executive's employment with the Company.
(c) Nondisparagement. During the Employment Term and Continuance Period, Executive and the Company in its official communications will not knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding the other. The Company will instruct its officers and directors to not knowingly and materially disparage, criticize, or otherwise make any derogatory statements regarding Executive. Notwithstanding the foregoing, nothing contained in this agreement will be deemed to restrict Executive, the Company or any of the Company's current or former officers and/or directors from providing factual information to any governmental or regulatory agency (or in any way limit the content of any such information) to the extent they are requested or required to provide such information pursuant to applicable law or regulation.
(d) Other Requirements. Executive's receipt of continued severance payments pursuant to Section 7 will be subject to Executive continuing to comply with the terms of the Confidential Information Agreement and the provisions of this Section 8.
(e) No Duty to Mitigate. Executive will not be required to mitigate the amount of any payment contemplated by this Agreement, nor will any earnings that Executive may receive from any other source reduce any such payment.
9. Excise Tax. In the event that the benefits provided for in this Agreement constitute "parachute payments" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") and will be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then Executive's severance benefits payable under the terms of this Agreement will be, at Executive's option, either (a) delivered in full, or (b) delivered as to such lesser extent which would result in no portion of such severance benefits being subject to the Excise Tax, WHICHEVER OF THE FOREGOING AMOUNTS, TAKING INTO ACCOUNT THE APPLICABLE FEDERAL, STATE AND LOCAL INCOME TAXES AND THE EXCISE TAX, RESULTS IN THE RECEIPT BY EXECUTIVE ON AN AFTER-TAX BASIS, OF THE GREATEST AMOUNT OF SEVERANCE BENEFITS.
10. Definitions.
(a) Cause, For purposes of this Agreement, "Cause" will mean:
(i) Acts or omissions constituting gross negligence, recklessness or willful misconduct on the part of Executive with respect to Executive's obligations under this Agreement or otherwise relating to the business of Company;
(ii) Any act of personal dishonesty taken by Executive in connection with his responsibilities as an employee of the Company with the intention or reasonable expectation that such action may result in the substantial personal enrichment of Executive;
(iii) Executive's conviction of, or plea of nolo contendere to, a felony that the Board reasonably believes has had or will have a material detrimental effect on the Company's reputation or business;
(iv) A breach of any fiduciary duty owed to the Company by Executive that has a material detrimental effect on the Company's reputation or business;
(v) Executive being found liable in any Securities and Exchange Commission or other civil or criminal securities law action or entering any cease and desist order with respect to such action (regardless of whether or not Executive admits or denies liability);
(vi) Executive (A) obstructing or impeding; (B) endeavoring to obstruct, impede or improperly influence, or (C) failing to materially cooperate with, any investigation authorized by the Board or any governmental or self-regulatory entity (an "Investigation"). However, Executive's failure to waive attorney-client privilege relating to communications with Executive's own attorney in connection with an Investigation will not constitute "Cause";
(vii) Executive's disqualification or bar by any governmental or self-regulatory authority from serving in the capacity contemplated by this Agreement or Executive's loss of any governmental or self-regulatory license that is reasonably necessary for Executive to perform his responsibilities to the Company under this Agreement, if (A) the disqualification, bar or loss continues for more than thirty (30) days, and (B) during that period the Company uses its good faith efforts to cause the disqualification or bar to be lifted or the license replaced. While any disqualification, bar or loss continues during Executive's employment, Executive will serve in the capacity contemplated by this Agreement to whatever extent legally permissible and, if Executive's employment is not permissible, Executive will be placed on leave (which will be paid to the extent legally permissible).
(b) Change of Control. For purposes of this Agreement, "Change of Control" will mean the occurrence of any of the following events:
(i) The consummation by the Company of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the total voting power represented by the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation;
(ii) The approval by the stockholders of the Company, or if stockholder approval is not required, approval by the Board, of a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets;
(iii) Any "person" (as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), other than Goldman Sachs 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 7.
(d) Disability. For purposes of this Agreement, "Disability" will mean Executive's absence from his responsibilities with the Company on a full-time basis for 120 calendar days in any consecutive twelve (12) month period as a result of Executive's mental or physical illness or injury.
(e) Good Reason. For purposes of this Agreement, "Good Reason" means the occurrence of any of the following, without Executive's express written consent:
(i) An adverse change in Executive's title or reporting relationship, or a significant reduction of Executive's duties, position, or responsibilities, relative to Executive's duties, position, or responsibilities in effect immediately prior to such reduction;
(ii) A material reduction in the kind or level of employee benefits to which Executive is entitled immediately prior to such reduction with the result that Executive's overall benefits package is significantly reduced. Notwithstanding the foregoing, a one-time reduction that also is applied to substantially all other executive officers of the Company and that reduces the level of employee benefits by a percentage reduction of 10% or less will not constitute "Good Reason";
(iii) A reduction in Executive's Base Salary or Target Annual Incentive as in effect immediately prior to such reduction. Notwithstanding the foregoing, a one-time reduction that also is applied to substantially all other executive officers of the Company and which one-time reduction reduces the Base Salary or Target Annual Incentive by a percentage reduction of 10% or less in the aggregate will not constitute "Good Reason";
(iv) The relocation of Executive to a facility or location more than thirty (30) miles from San Francisco, California;
(v) Any material breach by the Company of any material
contractual obligation owed Executive which breach is not remedied within thirty
(30) days of written notice; or
(vi) The failure of the Company to obtain the assumption of this Agreement by a successor.
(f) In Connection with a Change of Control. For purposes of this Agreement, a termination of Executive's employment with the Company is "in Connection with a Change of Control" if Executive's employment is terminated within three (3) months prior the execution of an agreement that results in a Change of Control or twelve (12) months following a Change of Control.
11. Indemnification. Subject to applicable law, Executive will be provided indemnification to the maximum extent permitted by statute, the Company's Certificate of Incorporation or Bylaws or any written indemnification agreement between Executive and the Company, including, if applicable, any directors and officers insurance policies, with such
indemnification to be on terms determined by the Board or any of its committees, but on terms no less favorable than provided to any other Company executive officer or director and subject to the terms of any separate written indemnification agreement.
12. Confidential Information. Executive will execute the form of Employment, Confidential Information and Invention Assignment Agreement, appended hereto as Exhibit A (the "Confidential Information Agreement"). In the event of any inconsistency between the terms of this Agreement and the terms of the Confidential Information Agreement, this Agreement will prevail.
13. Assignment. This Agreement will be binding upon and inure to the benefit of (a) the heirs, executors and legal representatives of Executive upon Executive's death, and (b) any successor of the Company. Any such successor of the Company will be deemed substituted for the Company under the terms of this Agreement for all purposes. For this purpose, "successor" means any person, firm, corporation, or other business entity which at any time, whether by purchase, merger, or otherwise, directly or indirectly acquires all or substantially all of the assets or business of the Company; provided that for purposes of Section 8(b), "successor" shall not include a direct or indirect parent corporation of the Company. None of the rights of Executive to receive any form of compensation payable pursuant to this Agreement may be assigned or transferred except by will or the laws of descent and distribution. Any other attempted assignment, transfer, conveyance, or other disposition of Executive's right to compensation or other benefits will be null and void. This Section 13 will in no way prevent Executive from transferring any vested property he owns.
14. Notices. All notices, requests, demands and other communications called for hereunder will be in writing and will be deemed given (a) on the date of delivery if delivered personally; (b) one (1) day after being sent overnight by a well-established commercial overnight service, or (c) four (4) days after being mailed by registered or certified mail, return receipt requested, prepaid and addressed to the parties or their successors at the following addresses, or at such other addresses as the parties may later designate in writing:
If to the Company:
2220 W 14th Street
Tempe, Arizona 85281
If to Executive:
at the last residential address known by the Company.
15. Severability. If any provision hereof becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable, or void, this Agreement will continue in full force and effect without said provision.
16. Arbitration. The parties agree that any and all disputes arising out of the terms of this Agreement, Executive's employment by the Company, Executive's service as an officer or director of the Company, or Executive's compensation and benefits, their interpretation and any of the matters herein released, will be subject to binding arbitration. In the event of a dispute, the
parties (or their legal representatives) will promptly confer to select a single Arbitrator mutually acceptable to both parties. If the parties cannot agree on an Arbitrator, then the moving party may file a Demand for Arbitration with the American Arbitration Association ("AAA") in Phoenix, Arizona, who will be selected and appointed consistent with the AAA-Employment Dispute Resolution Rules. Any arbitration will be conducted in a manner consistent with AAA National Rules for the Resolution of Employment Disputes. The Parties further agree that the prevailing party in any arbitration will be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO HAVE ANY DISPUTE BETWEEN THEM RESOLVED IN A COURT OF LAW BY A JUDGE OR JURY. This paragraph will not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the Parties and the subject matter of their dispute relating to Executive's obligations under this Agreement and the Confidential Information Agreement.
17. Integration. This Agreement, together with the Confidential Information Agreement and the forms of equity award agreements that describe Executive's outstanding equity awards, represents the entire agreement and understanding between the parties as to the subject matter herein and supersedes all prior or contemporaneous agreements whether written or oral. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in a writing and signed by duly authorized representatives of the parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise, or understanding that is not in this Agreement. To the extent that any provisions of this Agreement conflict with those of any other agreement to be signed upon Executive's hire, the terms in this Agreement will prevail.
18. Waiver of Breach. The waiver of a breach of any term or provision of this Agreement, which must be in writing, will not operate as or be construed to be a waiver of any other previous or subsequent breach of this Agreement.
19. Survival. The Confidential Information Agreement and the Company's and Executive's responsibilities under Sections 6, 7, 8 and 11 will survive the termination of this Agreement.
20. Headings. All captions and Section headings used in this Agreement are for convenient reference only and do not form a part of this Agreement.
21. Tax Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable taxes.
22. Governing Law. This Agreement will be governed by the laws of the state of Arizona without regard to its conflict of laws provisions.
23. Acknowledgment. Executive acknowledges that he has had the opportunity to discuss this matter with and obtain advice from his private attorney, has had sufficient time to, and has carefully read and fully understands all the provisions of this Agreement, and is knowingly and voluntarily entering into this Agreement.
24. Code Section 409A. Notwithstanding anything to the contrary in this Agreement, if the Company reasonably determines that Section 409A of the Code will result in the imposition of additional tax related to a payment of any severance or other benefits otherwise due to Executive on or within the six (6) month period following Executive's termination or separation from service (as defined pursuant to said Section 409A), the severance benefits will accrue during such six (6) month period and will become payable in a lump sum payment on the date six (6) months and one (1) day following the date of Executive's termination or separation from service, as the case may be. All subsequent payments, if any, will be payable as provided in this Agreement. The Company and Executive agree to work together in good faith to consider amendments to this Agreement necessary or appropriate to avoid imposition of any additional tax or income recognition prior to actual payment to Executive under Section 409A of the Code and any temporary or final Treasury Regulations and Internal Revenue Service guidance thereunder.
25. Counterparts. This Agreement may be executed in counterparts, and each counterpart will have the same force and effect as an original and will constitute an effective, binding agreement on the part of each of the undersigned.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by a duly authorized officer, as of the day and year written below.
COMPANY:
LIMELIGHT NETWORKS, INC.
/s/ JEFF LUNSFORD DATE: MARCH 25, 2007 ------------------------------------- JEFF LUNSFORD, CHIEF EXECUTIVE OFFICER |
EXECUTIVE
/s/ DAVID HATFIELD DATE: MARCH 27, 2007 ------------------------------------- DAVID HATFIELD |
[SIGNATURE PAGE TO HATFIELD EMPLOYMENT AGREEMENT]
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption "Experts" and to the use of our report dated March 21, 2007, in the Amendment No. 1 To Registration Statement (Form S-1) and related Prospectus of Limelight Networks, Inc. for the registration of shares of its Class A common stock.
/s/ Ernst & Young LLP Phoenix, Arizona April 27, 2007 |