Severance Agreement - CacheFlow Inc. and Michael A. Malcolm
November 9, 2000
Dear Michael:
This letter confirms the agreement between you and CacheFlow Inc. (the
"Company") regarding your resignation from the Company.
1. You agree that effective November 9, 2000 ("Resignation Date") you
voluntarily resigned as a member of the Board of Directors of
the Company and from all other positions you held with the
Company immediately prior to your resignation.
2. You agree that the only payments and benefits that you are
entitled to receive from the Company in the future are those
specified in this letter.
3. The Company will provide you with two (2) CF 500 series machines
("Machines") for your personal use, at no charge within ninety
(90) days after you have executed and delivered the Company's
standard purchase and license agreement for those machines (a
copy of which is attached hereto). The Company will provide you
with technical support for the Machines, including upgrades to
new software releases that are generally available, for a
period of three years from the Resignation Date at no expense.
The Company will reimburse you for Board and Company related
flight travel expenses, based on a rate of $1,000 per flight
hour, upon receipt of documentation supporting such expenses
within 30 days of the Resignation Date.
4. The Company agrees that it shall continue to automatically forward
to [email address] any email that it receives addressed to
[email address] and that it shall not read or intercept any of
these email messages. If you believe any such forwarded email
messages concern the Company's business you will forward such
email messages directly to me for my information. The Company
further agrees that for ninety (90) days following the
Resignation Date, it shall allow you to operate on the
Company's premises the NT server that runs the email server and
web server for [website] ("NT Server"). You agree that
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during that ninety (90) day period you will arrange for hosting
of the NT Server on another premise outside of the Company and
the Company agrees to return the NT Server to you upon your
request. You also understand and agree that you shall solely be
responsible for any maintenance, insurance or other service on
the NT Server.
5. The Company will issue a mutually agreed upon press release
regarding your resignation within fourteen days of the
Resignation Date in the form attached hereto.
6. You and the Company understand and agree that nothing in this
agreement shall modify in any manner any indemnification and/or
insurance rights you may have pursuant to the Company's
Certificate of Incorporation, Bylaws, the Indemnification
Agreement between you and the Company dated November 17, 1999,
or any applicable insurance policy for officers and directors
liability.
7. You understand and agree that you were granted the following
rights to purchase shares and options to purchase shares of the
Company's common stock. You have previously exercised all of
your options. As of November 3, 2000, you are currently vested
in the number of shares indicated.
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Number of Exercise Vested Unvested
Grant Date Shares Price 11/03/00 11/03/00
---------------------------------------------------------------------------------------------------
06/07/96 RSP 2,000,000 $ 0.005 2,000,000 0
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06/18/97 ISO 250,000 $ 0.075 250,000 0
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10/14/98 NSO 1,000,000 $ 0.50 833,333 166,667
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10/13/99 NSO 100,000 $ 6.00 25,000 75,000
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08/30/00 NSO 5,000 $105.00 0 5,000
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After you sign this letter and assuming you are fully in
compliance with the terms of this letter, the Company will
immediately vest you in the balance of the shares. You
acknowledge that you have no other stock rights in the Company
other than those rights enumerated in this paragraph and all
terms, conditions and limitations applicable to the stock
pursuant to the applicable stock purchase or stock option
agreement, except for time-based vesting provisions, shall
remain in full force and effect. Immediately following the
execution of this letter, the Company shall promptly seek to
remove all restrictive legends from your stock that are no
longer legally applicable in light of the agreements set forth
herein,
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including, but not limited to, any legends which will no longer
be relevant in light of your resignation from the Company's
Board of Directors.
8. In consideration for receiving the additional stock option vesting
described above, you waive and release and promise never to
assert any claims or causes of action, whether or not now
known, against the Company or its predecessors, successors, or
past or present subsidiaries, officers, directors, agents,
employees, assigns and employee benefit plans, with respect to
any matter, including but not limited to, any matter related to
your employment or other relationship with the Company or the
voluntary termination of that employment or other relationship,
including without limitation, claims of wrongful discharge,
emotional distress, defamation, fraud, breach of contract,
breach of the covenant of good faith and fair dealing, any
claims of discrimination or harassment based on sex, age, race,
national origin, disability or on any other basis, under Title
VII of the Civil Rights Act of 1964, the California Fair
Employment and Housing Act, the Age Discrimination in
Employment Act of 1967, and all other laws and regulations
relating to employment.
9. In consideration for your full release of claims, the Company
agrees to waive and release and promises never to assert any
claims or causes of action, whether or not now known, against
you or any of your heirs, executors, administrators, assigns
and successors, with respect to any matter, including but not
limited to, any matter arising out of or connected with your
employment or other relationship with the Company or the
voluntary termination of that employment or other relationship;
provided, however, that such waiver, release and promises shall
not include or extend to any claims or causes of action arising
out of your trading in the Company's securities.
10. You and the Company each expressly waive and release any and all
rights and benefits under Section 1542 of the Civil Code of the
State of California (or any analogous law of any other state),
which reads as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which, if known
by him, must have materially affected his settlement with the
debtor."
11. Nothing contained in this letter shall constitute or be treated
as an admission by you or the Company of liability, of any
wrongdoing, or of any violation of law.
12. You acknowledge and agree that you have returned to the Company
all items containing or embodying business, technical or
financial information
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(including, without limitation, the identity of or information
relating to customers or employees) that you have developed,
learned or obtained during the term of your service to the
Company that relate to the Company or the business or
demonstrably anticipated business of the Company, except that
you may keep your personal copies of (i) your compensation
records, (ii) materials and documents distributed to Board
members in order to fulfill their fiduciary duties, such as
documents distributed prior to Board meetings, provided that
you keep all such information, material and documents
confidential and not disclose them to any other individual or
entity and (iii) materials distributed to shareholders
generally.
13. You understand and agree that Sections 2 through 9, inclusive of
the Consulting Agreement between you and the Company dated June
8, 1996 shall remain in effect in accordance with the terms of
such agreement, which agreement terminated on June 1, 1999.
14. You agree that you will not make any derogatory statements about
the Company, its products, officers, directors or employees or
business practices. The Company and its officers and directors
agree they will not make any derogatory statements about you to
any party inside or outside the Company.
15. You agree that you will comply with the Company's insider trading
policy, including not trading in the Company's securities,
until two days following the Company's announcement of its
earnings for the second quarter ended October 31, 2000.
16. This agreement shall be construed and interpreted in accordance
with the laws of the State of California.
17. You agree that except as expressly provided in this letter, this
letter renders null and void any and all prior agreements
between you and the Company. You and the Company agree that
this letter constitutes the entire agreement between you and
the Company regarding the subject matter of this agreement, and
that this letter may be modified only in a written document
signed by you and a duly authorized officer of the Company.
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18. This Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall
constitute one agreement.
Please indicate your agreement with the above terms by signing below.
Sincerely,
David W. Hanna, on behalf of CacheFlow Inc.
Board of Directors
My agreement with the terms of this letter is signified by my
signature below. Furthermore, I acknowledge that I have read and understand
this letter and that I sign this release of all claims voluntarily, with full
appreciation that at no time in the future may I pursue any of the rights I have
waived in this letter.
Signed ____________________________ Dated: November 9, 2000
Michael A. Malcolm