Release - Inktomi Corp. and Dominic Gattuso
RELEASE
CONSIDERATION
Pursuant to the Inktomi Corporation Severance Benefits Plan For Employees,
Director Level Employees and Vice Presidents (Plan No. 18) and Summary Plan
Description ("Plan"), this Release is given in consideration of Inktomi
Corporation's ("Inktomi") provision of excuse from daily work duties and pay
continuation through the end of the "Notification Period" (as defined in the
Plan) and an additional payment of $245,807.69, equivalent to four (4) months
and twenty-four (24) days' pay, less deductions authorized or required by law,
paid in a lump sum, single payment thirty (30) days after my "Termination Date"
(as defined in the Plan) or thirty (30) days after Inktomi's receipt of this
signed, unrevoked Release, whichever is later.
On your termination date, each of your outstanding options will vest immediately
an additional one-year period.
In addition, Inktomi will continue to pay the cost for group employee benefit
coverage continuation under the Consolidated Omnibus Budget Reconciliation Act
of 1985 ("COBRA") at regular employee rates for five (5) month(s) from my
Termination Date, or until I become eligible for group insurance benefits from
another employer, whichever occurs first. I understand that I have an obligation
to inform Inktomi if I receive group coverage from another employer while
receiving COBRA coverage benefits and that I may not increase the number of my
designated dependants if any, during this time unless I do so at my own expense
in accordance with the applicable benefits plan. The period of such Inktomi-paid
COBRA coverage shall be considered part of my COBRA coverage entitlement period,
and may, for tax purposes, be considered income to me.
Inktomi also will provide outplacement services for one (1) month as described
in the Plan.
I understand that these are additional benefits for which I am not eligible
unless I elect to sign this Release. I also understand and agree that I will not
be entitled to such consideration if I commence employment elsewhere within the
Company or with an affiliate company. Further, should I execute this Release
prior to my last day of employment, I understand that I will be required to
re-execute this Release on or after my last day of employment in order to
receive the benefits herein.
RELEASE BY EMPLOYEE
In consideration of these additional benefits, I, on behalf of my heirs, spouse
and assigns, hereby completely release and forever discharge Inktomi, its past
and present affiliates, agents, officers, directors, shareholders, employees,
attorneys, insurers, successors and assigns (collectively referred to as
"Inktomi") from any and all claims, of any and every kind, nature and character,
known or unknown, foreseen or unforeseen, based on any act or omission occurring
prior to the date of my signing this Release, including but not limited to any
claims arising out of my offer of employment, my employment or termination of my
employment with Inktomi or my right to purchase, or actual purchase of shares of
stock of the Company, including, without limitation, any claims for fraud,
misrepresentation, breach of fiduciary duty, breach of duty under applicable
state corporate law, and securities fraud under any state or federal law. I
expressly agree and consent to the termination of my employment on January 13,
2003, or on an earlier date should I resign and/or become employed elsewhere, in
exchange for the additional benefits under the Plan. The matters released
include, but are not limited to, any claims under federal, state or local laws,
including claims arising under, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1866, the Civil Rights Act of 1991, the Employee Retirement
and Income Security Act of 1974 ("ERISA"), the Americans with Disabilities Act,
the Age Discrimination in Employment Act of 1967 ("ADEA") as amended, including
but not limited by, the Older Workers' Benefit Protection Act ("OWBPA"), the
DOMINIC GATTUSO JR December 17, 2002
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Worker Adjustment and Retraining Notification Act and applicable regulations,
and any common law tort or contract or statutory claims, and any claims for
attorneys' fees and costs. The only exceptions are any claims I may have for
unemployment compensation or workers compensation and any rights I may have
under the company pension plan.
I understand and agree that this Release extinguishes all claims, whether known
or unknown, foreseen or unforeseen, except for those claims expressly described
above. I expressly waive any rights or benefits under Section 1542 of the
California Civil Code, or any equivalent statute. California Civil Code Section
1542 provides 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."
I fully understand that, if any fact with respect to any matter covered by this
Release is found hereafter to be other than or different from the facts now
believed by me to be true, I expressly accept and assume that this Release shall
be and remain effective, notwithstanding such difference in the facts.
I agree not to file any claim, charge, action or complaint concerning any matter
referred to in this Release, with the exception of any claim that I may have as
to the validity of this Release under the ADEA as amended by the OWBPA. If I
have previously filed any such claim other than relating to the validity of this
Release under the ADEA, I agree to take all reasonable steps to cause them to be
withdrawn without delay.
This Release (which is part of the Plan) constitutes the entire agreement
between myself and Inktomi with respect to any matters referred to in this
Release. This Release supersedes any and all of the other agreements between
myself and Inktomi, except for the Employment, Confidential Information,
Invention Assignment and Arbitration Agreement, a copy of which is available
upon request from Human Resources, which remains in full force and effect. No
other consideration, agreements, representations, oral statements,
understandings or course of conduct which are not expressly set forth in this
Release should be implied or are binding. I am not relying upon any other
agreement, representation, statement, omission, understanding or course of
conduct which is not expressly set forth in this Release. I understand and agree
that this Release shall not be deemed or construed at any time or for any
purposes as an admission of any liability or wrongdoing by either myself or
Inktomi. I also agree that if any provision of this agreement is deemed invalid,
the remaining provisions will still be given full force and effect. The terms
and conditions of this agreement and release will be interpreted and construed
in accordance with the laws of California, to the extent not otherwise governed
by ERISA.
I further acknowledge that during my employment, I may have obtained
confidential, proprietary and trade secret information, including information
relating to Inktomi products, plans, designs and other valuable confidential
information. I agree not to disclose any such confidential information unless
required by subpoena or court order, and that I will first give Inktomi written
notice of such subpoena or court order with reasonable advance notice to permit
Inktomi to oppose such subpoena or court order if it chooses to do so.
I also agree that for a period of one (1) year after the termination of my
employment with Inktomi, and within any county in the United States or other
equivalent geographical subdivision in foreign jurisdictions in which the
Inktomi does business (a list of which is available from Human Resources and is
incorporated herein), I shall not: (i) directly call upon or solicit any of the
customers of Inktomi or any subsidiary or affiliate that were or became
customers and with whom I developed a relationship during the term of my
employment (as used herein "customer" shall mean any person or company as listed
as such on the books of Inktomi or any affiliates or
DOMINIC GATTUSO JR December 17, 2002
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subsidiary); or (ii) induce or attempt to induce any employee, agent or
consultant of Inktomi or any subsidiary to terminate his or her association with
Inktomi or any affiliates. Inktomi and I agree that the provisions of this
paragraph contain restrictions that are not greater than necessary to protect
the interests of Inktomi. In the event of the breach or threatened breach by me
of this paragraph, Inktomi, in addition to all other remedies available to it at
law or in equity, will be entitled to seek injunctive relief and/or specific
performance to enforce this paragraph.
Prior to execution of this Release, I have apprised myself of sufficient
relevant information in order that I might intelligently exercise my own
judgment. Inktomi has informed me in writing to consult an attorney before
signing this Agreement, if I wish. Inktomi has also given me at least 45 days in
which to consider this Release, if I wish. I also understand that for a period
of seven (7) days after I sign this Release I may revoke this Release Agreement
and that the Release shall not become effective until seven (7) days from my
signature.
Before signing this Release, Inktomi has also advised me (i) that eligible
employees laid off as a result of the November 13, 2002 reduction in force have
been given an opportunity to enrich their termination benefits in exchange for a
Release, and that no such employee has been given more than 45 days to consider
such option and (ii) of all individuals by job title and age who have been
selected for layoff or who are eligible for the Inktomi Corporation Severance
Benefit Plan and the job title and ages of all individuals in the same job
classification or organizational unit who are not eligible for the program. A
complete list of these individuals by job title and age is attached hereto as
Attachment 1.
I have read this Release and understand all of its terms. I further acknowledge
and agree that this Release is executed voluntarily and with full knowledge of
its legal significance. I also understand and agree that if any suit is brought
to enforce the provisions of this Release, with the exception of a claim brought
by me as to the validity of this Release under the ADEA as amended by the OWBPA,
the prevailing party shall be entitled to its costs, expenses, and attorneys'
fees as well as any and all other remedies specifically authorized under the
law.
EMPLOYEE'S ACCEPTANCE OF RELEASE
I HAVE CAREFULLY READ AND FULLY UNDERSTAND AND VOLUNTARILY AGREE TO ALL THE
TERMS OF THE RELEASE IN EXCHANGE FOR THE ADDITIONAL BENEFITS TO WHICH I WOULD
OTHERWISE NOT BE ENTITLED.
Dated
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DOMINIC GATTUSO
Dated
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David Peterschmidt, President & CEO
Inktomi Corporation
DOMINIC GATTUSO JR December 17, 2002