Release and Waiver - Inktomi Corp. and Ted Hally
RELEASE AND WAIVER
CONSIDERATION
This Release is given in consideration of Inktomi Corporation's additional
provision of the following:
(1) A paid leave of absence for eight (8) months (ending December 31,
2002) or until I am employed elsewhere, whichever is earlier. Upon exhaustion of
my paid leave of absence or upon commencement of other employment, whichever
occurs first, my employment with Inktomi Corporation will terminate
("Termination Date"). During my paid leave of absence, salary and benefits will
be treated as follows: I will continue to collect my regular base salary, less
deductions required by law, in accordance with Inktomi Corporation's regular
payroll periods; my employee group health benefits will continue; I will
continue to be eligible to participate in the personal goal achievement
component of the annual bonus plan only, but not the profit achievement
component; my participation in the ESPP will cease pursuant to the Inktomi
Corporation ESPP Plan documents; my stock options will cease to vest pursuant to
the Inktomi Corporation Stock Option plans (however, they will continue to be
exercisable for 90 days following my Termination Date in accordance with the
provisions of such plans); and I will not continue to accrue vacation and sick
leave. During this paid leave of absence, I may be called upon to perform
services for Inktomi Corporation and I agree to do so. My paid leave of absence
will begin on May 1, 2002, or ten (10) days after Inktomi Corporation's receipt
of this signed, unrevoked Release, whichever is later.
(2) Forgiveness of my Employee Loan Agreement entered into April 30, 2001
(including the Promissory Note attached thereto as Exhibit A) ("Loan"), the
current balance (excluding interest) of which is $1,735,000. In addition,
Inktomi Corporation will provide me with a cash payment equivalent to the tax
incurred by me as a result of the forgiveness of the Loan ("Gross Up") up to
$992,272.73, less the amount of any after-tax gains acquired by the exercise and
sale of any Inktomi Corporation stock options held by me as determined by
Inktomi Corporation. I further agree to do a same day sale of all stock options
that I exercise and that I will exercise within ten (10) days of my Termination
Date all my vested in-the-money options. The Loan will be forgiven on my
Termination Date or ten (10) days after Inktomi Corporation's receipt of the
re-executed, unrevoked Release, whichever is later. The Gross Up will be
provided to me within thirty (30) days of my Termination date or thirty (30)
days after Inktomi Corporation's receipt of the re-executed, unrevoked Release,
whichever is later.
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(3) Outplacement services through the Termination Date, beginning on May
1, 2002 or ten (10) days after Inktomi Corporation's receipt of this signed
unrevoked Release, whichever is later.
(4) Payment of relocation costs up to $25,000 for relocation of myself and
my family back to the U.K. if I am required to return to the U.K. within ninety
days of my Termination Date due to the expiration of my Visa (and not due to any
employment offer or opportunity). This benefit will be provided to me following
my submission to Inktomi Corporation of written receipts of the relocation costs
provided such receipts are received by Inktomi Corporation no later than April
14, 2003. This payment of relocation costs is conditional on Inktomi
Corporation's receipt of the re-executed, unrevoked Release.
(5) Other than as set forth below, Inktomi's release and discharge of me
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 by me occurring
prior to the date of my signing this Release, including but not limited to 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; provided that Inktomi will not release or discharge me for any and
all claims arising out of my breach of any provision contained in my Employment,
Confidential Information, Invention Assignment and Arbitration Agreement.
Inktomi Corporation's release of its claims is conditional on Inktomi
Corporation's receipt of the re-executed, unrevoked Release.
Inktomi understands and agrees that this Release extinguishes all
claims, whether known or unknown, foreseen or unforeseen, except for those
claims expressly described above. Inktomi expressly waives 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."
Inktomi fully understands 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 Inktomi to be true, Inktomi expressly accepts and
assumes that this Release shall be and remain effective, notwithstanding such
difference in the facts.
I understand that these are additional benefits to which I am not eligible
unless I elect to sign this Release. I acknowledge and agree that I am not
eligible for participation in any Inktomi Corporation severance plan, policy or
practice. I understand that I have an obligation to inform Inktomi Corporation
if I become employed elsewhere before my
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Termination Date. I also understand and agree that I will not be entitled to
such consideration detailed above should I commence employment with an
subsidiary company. Further, I expressly agree that any and all tax liability,
cost, interest, assessment and/or penalty which may become due because of the
payment of the benefits herein are my sole responsibility other than as
expressly set forth herein. I further agree to pay any taxes, costs, interest,
assessments and/or penalties which shall become due and will deliver to Inktomi
Corporation proof of such payments, if necessary, and will indemnify and hold
Inktomi Corporation harmless if it incurs any tax liability, cost, interest,
assessment and/or penalty as a result of this Release.
I waive my right to six (6) months continued pay, less deductions required
by law and any other benefits set forth in my offer letter with Inktomi
Corporation dated November 22, 2000 and any attachments thereto in exchange for
the benefits provided herein.
RELEASE
In consideration of these additional benefits, I, on behalf of my heirs,
spouse and assigns, hereby completely release and forever discharge Inktomi
Corporation, its past and present affiliates, agents, officers, directors,
shareholders, employees, attorneys, insurers, successors and assigns
(collectively referred to as "Company") 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 the Company 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. 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, the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967 ("ADEA") as amended, including but not
limited to, the Older Workers' Benefit Protection Act ("OWBPA") other than
claims relating to the validity of this Release under the ADEA as amended by the
OWBPA, 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 or workers compensation.
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:
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"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 claims, 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. I agree not to apply for employment with the
Company or any of its subsidiaries, in the future and I also understand that the
Company and its subsidiaries have no obligation to re-hire or employ me.
I further acknowledge that during my employment, I may have obtained
confidential, proprietary and trade secret information, including information
relating to the Company's 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 the Company written notice of such subpoena or court order with reasonable
advance notice to permit the Company to oppose such subpoena or court order if
it chooses to do so.
I also agree that for a period of 1 year after the Termination Date with
the Company, and within any county in the United States or other equivalent
geographical subdivision in foreign jurisdictions in which the Company 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
the Company or any subsidiary 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
the Company or any subsidiary); or (ii) induce or attempt to induce any
employee, agent or consultant of the Company or any subsidiary to terminate his
or her association with the Company or any subsidiaries. The Company and I agree
that the provisions of this paragraph contain restrictions that are not greater
than necessary to protect the interests of the Company. In the event of the
breach or threatened breach by me of this paragraph, the Company, 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. The
provisions of this paragraph expressly supersede any
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conflicting provisions contained in any other plan or agreement I am party to
with the Company.
This Release constitutes the entire agreement between myself and the
Company with respect to any matters referred to in this Release. This Release
supersedes any and all of the other agreements between myself and the Company,
except for the Employment, Confidential Information, Invention Assignment and
Arbitration Agreement, attached hereto as Attachment 1, which remain 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 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 the
Company. 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.
Prior to execution of this Release, I have apprised myself of sufficient
relevant information in order that I might intelligently exercise my own
judgment. The Company has informed me in writing to consult an attorney before
signing this Agreement, if I wish. The Company has also given me at least 21
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 the date of my signature.
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.
Finally, I agree that I will not disclose voluntarily or allow anyone else
to disclose either the existence, reason for or contents of this Release without
the Company's prior written consent, unless required to do so by law.
Notwithstanding this provision, I am authorized to disclose this Release to my
spouse, attorneys and tax advisors on a "need to know" basis, on the condition
that they agree to hold the terms of the Release, including the settlement
payments, in strictest confidence. I am further authorized to make appropriate
disclosures as required by law, provided that I notify the Company in writing of
such legal obligations to disclose at least five (5) business days in advance of
disclosure. I further agree to indemnify and hold harmless the Company for and
against any and all costs, losses
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or liability, whatsoever, including reasonable attorney's fees, caused by my
breach of the non-disclosure provisions.
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: April 19, 2002 /s/ Ted Hally
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Ted Hally
INKTOMI'S AGREEMENT TO THE RELEASE
INKTOMI AGREES TO PROVIDE THE BENEFITS DESCRIBED HEREIN EXCHANGE FOR
THIS RELEASE.
Dated: April 18, 2002 /s/ Tim Burch
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Tim Burch,
VP of Human Resources
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EMPLOYEE'S RE-EXECUTION AND AFFIRMATION OF RELEASE
I HEREBY RE-EXECUTE AND REAFFIRM ALL RIGHTS AND OBLIGATIONS SET FORTH IN THE
RELEASE ENTERED INTO ON ____________, 2002, INCLUDING BUT NOT LIMITED TO AN
ADDITIONAL 21 DAYS TO CONSIDER THE RE-EXECUTION AND ADDITIONAL 7 DAYS TO REVOKE
MY RE-EXECUTION, AND I VOLUNTARILY AGREE TO ALL OF THE TERMS IN THE RELEASE IN
EXCHANGE FOR THE ADDITIONAL BENEFITS TO WHICH I WOULD NOT OTHERWISE BE ENTITLED.
DATED:__________________ ________________________________
Ted Hally
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ATTACHMENT 1
[ATTACH Employment, Confidential Information, Invention Assignment and
Arbitration Agreement]