{"id":38938,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-apple-computer-inc-and-dr-gilbert-f.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-apple-computer-inc-and-dr-gilbert-f","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-apple-computer-inc-and-dr-gilbert-f.html","title":{"rendered":"Employment Agreement &#8211; Apple Computer Inc. and Dr. Gilbert F. Amelio"},"content":{"rendered":"<pre>\n                      Apple Computer, Inc.\n                         1 Infinite Loop\n                      Cupertino, CA  95014\n                                \n                                \n                                \n                                \nDr. Gilbert F. Amelio\n13416 Middle Fork Lane\nLos Altos Hills, CA  94022\n\n\n                      Employment Agreement\n                                \n                                \nDear Dr. Amelio:\n\n           The  following sets forth our agreement regarding the terms  and\nprovisions of your employment as an officer and employee of Apple Computer,\nInc.  (the  'Company') during the Term.  Capitalized words  which  are  not\notherwise defined herein shall have the meanings assigned to such words  in\nSection 8 of this Agreement.\n\n           1.    Term of Employment Under the Agreement.  The term of  your\nemployment under this Agreement (the 'Term') shall commence on February  2,\n1996  (the 'Effective Date') and shall continue until the fifth anniversary\nof  the  Effective Date.  For purposes of this Agreement,  'Contract  Year'\nmeans each 12-month period during the term beginning on the Effective  Date\nor  anniversary thereof, and 'Fiscal Year' means the Company's fiscal year.\nSubject  to  the provisions of Section 5 below, either party may  terminate\nthe Term at any time.\n\n           2.   Employment During the Term.  During the Term, you shall  be\nemployed  as  the Chairman and Chief Executive Officer of the  Company  and\nshall  report  directly  to  the Board of Directors  of  the  Company  (the\n'Board'),  and  your duties and responsibilities to the  Company  shall  be\nconsistent  in  all  respects with such positions.  During  the  Term,  the\nCompany  will  take  all  steps reasonably necessary  to  assure  that  you\ncontinue  to  be  elected  or appointed to the  Board.   You  shall  devote\nsubstantially  all  of your business time, attention,  skills  and  efforts\nexclusively  to  the  business and affairs of the Company,  other  than  de\nminimis  amounts of time devoted by you to the management of your  personal\nfinances  or to engaging in charitable or community services.   During  the\nTerm,  you shall be permitted to continue serving as a member of the boards\nof  directors of the corporations on which you are serving as a director on\nthe  Effective  Date  (and on such other boards  of  directors  as  may  be\napproved in writing from time to time by the Board) as long as such service\ndoes not adversely affect the performance of your duties to the Company  as\ncontemplated  hereunder.  Your principal place of employment shall  be  the\nexecutive offices of the Company as established from time to time, although\nyou  understand and agree that you will be required to travel from time  to\ntime for business purposes.\n                                \n                               23\n\n\n          3.   Compensation During the Term.\n\n           (a)   Base  Salary.   As compensation to you  for  all  services\nrendered  to the Company and its subsidiaries, the Company will pay  you  a\nbase  salary (the 'Salary') at the rate of $990,000 per annum.  Your Salary\nwill  be  paid  to  you  in accordance with the Company's  regular  payroll\npractices  applicable to its executive officers.  Your rate of Salary  will\nbe  reviewed annually by the Board and may be increased by the Board on the\nbasis of such review.\n\n          (b)  Bonus.\n\n          (i)  Annual Bonus.  You shall be eligible to earn an annual bonus\n(the  'Annual Bonus') for each whole or partial Fiscal Year during the Term\nconsisting  of the sum of (i) the Component A Bonus (as defined below)  for\nthat Fiscal Year and (ii) the Component B Bonus (as defined below) for such\nFiscal  Year.   The Annual Bonus for each given Fiscal Year  will  be  paid\nwithin  90  days following the end of the Fiscal Year to which such  Annual\nBonus  relates.   The 'Component A Bonus' shall be based upon  the  Company\nachieving  one or more performance goals established in good faith  by  the\nCompensation Committee of the Board (the 'Committee') and approved  by  the\nBoard  for  such Fiscal Year.  The performance goal or goals applicable  to\nthe  Component A Bonus for the Fiscal Year of the Company that includes the\nEffective  Date will be established within 60 days following the  Effective\nDate. The performance goals for the Component A Bonus for subsequent Fiscal\nYears will be established, to the extent practicable, prior to the start of\nthe  applicable  Fiscal Year, but in no event later than 90 days  following\nthe commencement of the Fiscal Year.  The target amount of your Component A\nBonus for each 12-month Fiscal Year will equal 100% of your annual rate  of\nSalary based upon the rate in effect on the first day of that Fiscal  Year.\nThe  target  amount  for any Fiscal Year of fewer than 12  months  will  be\nprorated by multiplying the target amount determined in accordance with the\nprevious  sentence  by  a  fraction (in no event  greater  than  one),  the\nnumerator  of which is the number of days in such Fiscal Year in  the  Term\nand  the  denominator  of  which is 365 ( the 'Proration  Fraction').   The\nactual amount of the Component A Bonus paid to you for a given Fiscal  Year\n(which,  for purposes of this Agreement, will be deemed earned  as  of  the\nlast  day of the applicable Fiscal Year) may range from 50% to 300% of  the\ntarget  amount,  based  upon  a  performance schedule  established  by  the\nCommittee  for the applicable Fiscal Year and the relationship between  the\nCompany's actual performance for the Fiscal Year and the target performance\nestablished  for  that  year  by the Committee (it  being  understood  that\npayments  in excess of 200% of target will be made only for extraordinarily\ngood  corporate performance and payments of no Component A  Bonus  will  be\nmade  for  only  poor corporate performance); provided, however,  that  the\nminimum Component A Bonus for the first Fiscal Year ending during the  Term\nshall be 50% of the target amount for that Fiscal Year.  There shall be  no\nminimum  guaranteed Component A Bonus for any Fiscal Year  other  than  the\nfirst Fiscal Year ending during the Term.  The 'Component B Bonus' shall be\n$1,000,000 for each Fiscal Year of the Company ending during the Term (and,\nfor purposes of this Agreement, will be deemed earned as of the last day of\nthe  applicable Fiscal Year ending during the Term).  In no event  may  the\nsum  of  the Component B Bonuses paid for all Fiscal Years during the  Term\nexceed  $5  million. In the event that the Company changes its Fiscal  Year\nduring  the  Term,  an  equitable adjustment shall be  made  to  the  bonus\narrangement which, in the reasonable good faith judgment of the  Committee,\npreserves, to the extent practicable, the bonus opportunity (including  the\ntiming of payment of the Component B Bonuses) set forth above.\n\n           (ii)  Signing  Bonus.  In addition to any amounts payable  under\nSection  3(b)(i)  above, the Company will pay you as  soon  as  practicable\nfollowing the Effective Date a one-time signing bonus of $200,000.\n                                \n                               24\n\n\n           (c)   Loan.    On or as soon as practicable after the  Effective\nDate,  the  Company shall cause one of its subsidiaries (the  'Lender')  to\nlend  you  the amount of $5,000,000 (the 'Loan').  The Loan shall initially\nbe  made  to  you on a fully recourse basis but shall, subject  to  Section\n5(h),  become  nonrecourse (and thereafter remain nonrecourse)  as  to  the\nportion  of  the principal amount of the Loan that is secured by collateral\nwith a value on the date such collateral is pledged by you equal to 125% of\nthe  outstanding  principal amount of the Loan.  To  the  extent  that  the\ncollateral  pledged  by you does not have a value  equal  to  125%  of  the\noutstanding  principal amount of the Loan, the portion  of  the  Loan  that\nshall be recourse shall be determined in accordance with the formula  [P  -\n(C\/1.25)],  where 'P' is the outstanding principal amount of the  Loan  and\n'C' is the fair market value of all collateral securing the Loan determined\nas  of  the  date such collateral is pledged.  The collateral that  may  be\npledged  by  you   to  secure the Loan shall consist of Performance  Shares\nearned  by  you  and  such other collateral as the  Lender  may  reasonably\naccept.  The Company agrees to release its security interest in Performance\nShares  prior to the full repayment of the Loan to the extent necessary  to\npermit  you to sell such shares in order to pay the tax liability  incurred\nby  you  in connection with your earning of the Performance Shares, to  pay\nany  currently due interest on the Loan or to pay any outstanding principal\namount  of  the  Loan.  The Loan shall bear interest at  the  minimum  rate\nnecessary  to  avoid the imputation of interest under the  Code.   Interest\nshall compound and be payable annually on each anniversary of the Effective\nDate  and  on  the date of your termination or resignation  of  employment.\nTwenty  per cent of the initial principal amount of the Loan shall  be  due\nand  payable  on  each  of  the first through fifth  anniversaries  of  the\nEffective  Date.  The entire principal amount of the Loan and  any  accrued\nbut  unpaid  interest on the Loan shall be immediately due and  payable  90\ndays  following the Date of Termination (as hereinafter defined).  You  may\nprepay  some or all of the principal amount of the Loan and any portion  of\nthe accrued but unpaid interest on the Loan at any time without premium  or\npenalty.  Repayments of principal and interest on the Loan shall be applied\nratably at the time of payment to the recourse and nonrecourse portions  of\nthe  Loan.  Following your termination or resignation of employment for any\nreason,  the Company and the Lender shall have the unconditional  right  to\nreduce  any  payments owed to you hereunder by the amount of  any  due  and\nunpaid  principal and interest on the Loan and you hereby agree and consent\nto such right on the part of the Company and the Lender.  As a condition to\nmaking the Loan to you, you shall execute a promissory note in favor of the\nLender  and  any  other applicable Loan documentation consistent  with  the\nterms of this Section 3(c) which is reasonably requested by the Lender.\n\n           (d)   Benefits.   During  the Term, you  shall  be  eligible  to\nparticipate  in all welfare and fringe benefit plans and arrangements  that\nthe  Company  provides to its executive employees in  accordance  with  the\nterms  of such plans and arrangements, which shall be no less favorable  to\nyou,  in  the aggregate, than the terms and provisions available  to  other\nexecutive  employees  of  the Company.  Subject  to  your  insurability  at\nstandard  commercial rates, in lieu of your participating in the  Company's\nregular  life  insurance programs, the Company agrees to maintain  a  whole\nlife insurance policy for you during the Term with a death benefit equal to\n5  times  your annual rate of Salary.  The whole life policy  shall  be  on\nterms which are substantially similar to those applicable to the whole life\npolicy in effect with your prior employer (including the provisions thereof\napplicable to the allocation of premiums on the policy between you and  the\nCompany).\n\n          (e)  Expenses.  The Company will reimburse you in accordance with\nits  regular  policies  and  practices  for  business  expenses  reasonably\nincurred  by  you in connection with the performance of your  duties  under\nthis  Agreement, subject to your presentation of appropriate  documentation\nof such expenses.\n\n           (f)   Airplane Lease.  The Company agrees to lease your  current\nairplane  for business purposes on terms which are commercially  reasonable\nto you and the Company. The terms of such airplane lease will be negotiated\nin  good faith by you and the Company after the Effective Date and will  be\nmemorialized in appropriate documentation.\n                              25\n\n\n           4.    Long-Term Incentive Compensation.  In order to align  your\ninterests  more  closely  with  those of the  Company's  stockholders,  the\nCompany   will   offer  the  following  long-term  incentive   compensation\narrangements to you, subject to the terms and conditions set forth below.\n\n           (a)   Stock Option.  Subject to Section 4(c) below, as  soon  as\npracticable  after  the  Effective Date, the  Company  will  grant  to  you\npursuant  to  the Apple Computer, Inc. 1990 Stock Option Plan (the  'Option\nPlan')  a  stock option (the 'Option') covering 1,000,000 shares of  common\nstock of the Company (the 'Common Stock').  The per share exercise price of\nthe Option shall be the fair market value of a share of Common Stock on the\nday  before  the  date the Option is granted to you by  the  Committee,  as\ndetermined  in  accordance with the provisions of  the  Option  Plan.   The\nOption  shall  become vested and exercisable with respect  to  20%  of  the\nshares  of Common Stock subject thereto on the Initial Vesting Date and  on\neach  of  the  second  through fifth anniversaries of the  Effective  Date,\nprovided that you have remained in the continuous full-time employ  of  the\nCompany  through  each such vesting date and stockholder  approval  of  the\ngrant of the Option is obtained in accordance with Section 4(c) below.  The\nOption  will be subject to the terms and provisions of the Option Plan  and\nsuch  other  terms  consistent with the Option Plan as  the  Committee  may\nspecify and set forth in the applicable Option Agreement.\n\n          (b)  Performance Shares.  (i)  Subject to Section 4(c) below, for\neach Fiscal Year during the Term, you shall be afforded the opportunity  to\nearn  the  Target Amount (as defined below) of shares of Common Stock  (the\n'Performance  Shares'), subject to the Company's attaining the  performance\ngoal  or  goals established in good faith by the Committee and approved  by\nthe  Board  for  that  Fiscal  Year (hereinafter,  the  'Performance  Share\nArrangement').   The 'Target Amount' for each 12-month Fiscal  Year  during\nthe  Term shall be 200,000 shares of Common Stock.  The 'Target Amount' for\neach  Fiscal  Year  of the Term of fewer than 12 months  shall  be  200,000\nshares of Common Stock multiplied by the Proration Fraction.   In no  event\nmay you have the opportunity to earn more than 1,000,000 Performance Shares\nduring the Term.  The performance goal or goals for first Fiscal Year  will\nbe   established  within  60  days  following  the  Effective  Date.    The\nperformance goals for subsequent Fiscal Years will be established,  to  the\nextent  practicable, prior to the start of the applicable Fiscal Year,  but\nin no event later than 90 days following the start of the Fiscal Year.  The\nperformance  goal or goals established by the Committee for a given  Fiscal\nYear  need not be the same goal or goals established by the Committee under\nSection 3(b) above.  You may earn fewer than the full number of Performance\nShares  in a given year for performance that is below target for that  year\nbased  upon an award schedule established by the Committee at the  time  it\nsets  the performance targets for the year.  In the event that the  Company\nchanges  its Fiscal Year during the Term, an equitable adjustment shall  be\nmade  to  the  Performance Share Arrangement which, in the reasonable  good\nfaith judgment of the Committee, preserves, to the extent practicable,  the\nlong-term incentive opportunity set forth above.\n\n           (ii)  The Performance Shares earned by you for the first  Fiscal\nYear  will  be  deemed  earned  on the Initial  Vesting  Date  (subject  to\napplicable performance targets being achieved) and will be awarded  to  you\nas  soon  as practicable following the Initial Vesting Date, provided  that\nyou have remained in the continuous full-time employ of the Company through\nthat  date.   The  Performance Shares for the second Fiscal  Year  will  be\nawarded  to you on the Initial Vesting Date (provided you are then employed\nby  the Company), but will be forfeited in whole or in part as of the  last\nday of that Fiscal Year if the performance goal or goals applicable to that\nyear  are not achieved.  The Performance Shares for each subsequent  Fiscal\nYear  will  be  awarded  to you as of the first  day  of  the  Fiscal  Year\n(provided  you are then employed by the Company), but will be forfeited  in\nwhole  or in part as of the last day of that Fiscal Year if the performance\ngoal or goals applicable to that year are not achieved.  Performance Shares\nwill  not  be transferrable by you until they have been earned  by  you  in\naccordance  with  the provisions of this Section 4(b).  Performance  Shares\nawarded  for Fiscal Years during the Term other than the first Fiscal  Year\nwill  be issued in your name, but the share certificates representing  such\nshares will be held by the Company or its agent until they have been earned\nin  accordance with the provisions of this Section 4(b) and  will  bear  an\nappropriate  legend  or  legends reflecting the transfer  restrictions  and\nforfeiture provisions applicable thereto.\n                               26\n\n\n          (iii)     In the event of a Change in Control of the Company, the\nCompany   shall  make  equitable  adjustments  to  the  Performance   Share\nArrangement  in an manner intended to preserve the economic  value  of  the\narrangement;  provided, however, that, in the event  of  a  merger  of  the\nCompany with or into another corporation, such adjustment shall consist  of\na conversion of Performance Shares to be earned under the Performance Share\nArrangement into shares of the surviving corporation in accordance with the\nexchange  ratio  approved by the Company's stockholders  and  an  equitable\nadjustment  to  the  performance goals applicable to the Performance  Share\nArrangement.\n\n           (c)  Stockholder Approval.  The grant of the Option is expressly\nconditioned  upon the stockholders of the Company approving in  a  separate\nvote  of  the  stockholders  at  the first annual  or  special  meeting  of\nstockholders of the Company to occur after the Effective Date (i) the grant\nof  the  Option and (ii) an amendment to the Option Plan to  permit  it  to\ncomply  with  the requirements of Section 162(m) of the Code applicable  to\nqualified performance-based compensation.   If such stockholder approval is\nnot  obtained  in  the  manner contemplated by the previous  sentence,  the\nOption  grant shall be void ab initio and of no further force  and  effect.\nSimilarly, the Performance Share Arrangement is expressly conditioned  upon\nthe  stockholders  of  the Company approving in  a  separate  vote  of  the\nstockholders at the first annual or special meeting of stockholders of  the\nCompany to occur after the Effective Date the Performance Share Arrangement\nand such additional terms as shall be necessary for the arrangement to meet\nthe  requirements  of  Section 162(m) of the Code applicable  to  qualified\nperformance-based  compensation.   If  such  stockholder  approval  is  not\nobtained  in  the  manner  contemplated  by  the  previous  sentence,   any\noutstanding  Performance  Shares shall be  immediately  forfeited  and  the\nPerformance  Share Arrangement shall be void ab initio and  of  no  further\nforce and effect.  If the stockholder approval contemplated by this Section\n4(c) is not obtained, you and the Company agree to negotiate an alternative\nlong-term compensation arrangement to be submitted to stockholders  and  to\nsubmit  such alternative long-term compensation arrangement to stockholders\nas soon as reasonably practicable, and to repeat this process to the extent\nnecessary   until   an   alternative  long-term  compensation   arrangement\nnegotiated  by  you  and  the  Company  is  subsequently  approved  by  the\nstockholders.  You and the Company agree to make a good faith and  diligent\neffort to obtain the stockholder approval contemplated by this Section 4(c)\nas soon as reasonably possible.  Anything in this Agreement to the contrary\nnotwithstanding,  the Company shall have no obligation to  call  a  special\nmeeting   of  stockholders  for  the  purpose  of  obtaining  any  approval\ncontemplated by this Section 4(c).\n\n            (d)   Registration;  Reservation  of  Shares.   To  the  extent\npracticable, the Company will undertake to register the Option, the  shares\nof Common Stock underlying the Option and the Performance Shares on Form S-\n8  under the Securities Act.  The previous sentence, however, shall not  in\nany  way be construed as (i) prohibiting the Company from engaging  in  any\ntransaction  (including  a transaction that will  result  in  a  Change  in\nControl), (ii) requiring the Company to file any reports under the Exchange\nAct  or  to  maintain  its  registration under the  Exchange  Act  if  such\nregistration  is not otherwise required or (iii) requiring the registration\nof  the  Option, the shares of Common Stock underlying the  Option  or  the\nPerformance  Shares  on Form S-8 (or any other form) if  Form  S-8  is  not\navailable  to the Company.  As soon as practicable following the  Effective\nDate,  the  Company shall reserve for issuance 1,000,000 shares  of  Common\nStock  for  issuance under the Performance Share Arrangement.  As  soon  as\npracticable  following the Effective Date, the Company  shall  reserve  for\nissuance  1,000,000 shares of Common Stock for issuance  under  the  Option\nPlan in connection with the grant of the Option.\n                                \n                               27\n\n\n          5.   Effect of Termination of Employment.\n\n           (a)  Right to Resign Following a Year One Change in Control.  In\nthe  event  of  a Year One Change in Control, you shall have the  right  to\nresign  for any reason or for no stated reason during the Election  Window.\nIn  the  event  of such a resignation, the Company shall pay you  the  full\namount of the accrued but unpaid Salary you have earned through the Date of\nTermination, plus a cash payment (calculated on the basis of your  rate  of\nSalary  then  in effect) for all unused vacation time which  you  may  have\naccrued as of the Date of Termination.  In addition, the Company shall  pay\nyou  on the Severance Payment Date an 'all in' cash lump sum payment of $10\nmillion.   You will relinquish, as of the Date of Termination, the  Option,\nall  rights  under  the Performance Share Arrangement and  any  outstanding\nPerformance  Shares  and the right to any additional payments  or  benefits\nfrom  the Company under this Agreement.  The provisions of the Section 5(a)\nshall  not  apply  if,  at  the time of your resignation,  the  Company  is\nentitled to terminate your employment for Cause.\n\n           (b)   Involuntary Termination Prior to the Initial Vesting Date.\nIn  the  event of your Involuntary Termination prior to the Initial Vesting\nDate,  the Company shall pay you the full amount of the accrued but  unpaid\nSalary you have earned through the Date of Termination, plus a cash payment\n(calculated  on  the basis of your rate of Salary then in effect)  for  all\nunused  vacation  time  which  you may have  accrued  as  of  the  Date  of\nTermination.   In  addition, the Company shall pay  you  on  the  Severance\nPayment  Date an 'all in' cash lump sum payment of $10 million.   You  will\nrelinquish as of the Date of Termination the Option, all rights  under  the\nPerformance  Share Arrangement and any outstanding Performance  Shares  and\nthe  right  to  any additional payments or benefits from the Company  under\nthis Agreement.\n\n           (c)   Involuntary  Termination On or After the  Initial  Vesting\nDate.   (i)   In the event of your Involuntary Termination on or after  the\nInitial  Vesting  Date, the Company shall pay you the full  amount  of  the\naccrued  but  unpaid  Salary  you have earned  through  the  date  of  such\nInvoluntary  Termination, plus a cash payment (calculated on the  basis  of\nyour rate of Salary then in effect) for all unused vacation time which  you\nmay  have  accrued as of the date of Involuntary Termination.  In addition,\nthe  Company  shall pay you on the Severance Payment Date a cash  lump  sum\namount  equal to the sum of (i) the Salary payable to you for the remaining\nportion  of the Term and (ii) your annual rate of Salary (at the rate  then\nin  effect) times the number of whole and partial Contract Years  remaining\nin  the  Term. In the event of an Involuntary Termination on or  after  the\nInitial Vesting Date, you will retain all Performance Shares that have been\nearned  by you on or prior to the date of such Involuntary Termination  and\nyou  will  continue to have the opportunity to earn the Performance  Shares\nfor  the  Fiscal Year in which the Involuntary Termination  occurs  if  the\napplicable  performance goals for that Fiscal Year are achieved;  provided,\nhowever,  that, if your employment is Involuntarily Terminated  (i)  on  or\nafter  the  Initial Vesting Date and (ii) on or after a Change  in  Control\n(other  than  a Year One Change in Control), then the number of Performance\nShares  you shall earn for the Fiscal Year in which the Date of Termination\noccurs shall not be less than the Target Amount for that Fiscal Year (in no\nevent  greater than 200,000) multiplied by a fraction (in no event  greater\nthan one), the numerator of which is the number of days in such Fiscal Year\nup to and including the Date of Termination and the denominator of which is\n365  (the  'Change  in  Control Fraction').   All other  rights  under  the\nPerformance Share Arrangement and all other outstanding Performance  Shares\nwill  be  forfeited  as of the Date of Termination.  You  will  retain  the\nportion  of  the  Option  that  has vested on  or  prior  to  the  Date  of\nTermination.  In addition,  if your employment is Involuntarily  Terminated\n(i)  on or after the Initial Vesting Date and (ii) on or after a Change  in\nControl  (other than a Year One Change in Control), you shall also vest  in\nan  additional portion of the Option on the Date of Termination  determined\nby multiplying the number of shares of Common Stock in which the Option was\nscheduled to vest on the anniversary of the Effective Date occurring on  or\nimmediately  following  the Date of Termination by the  Change  in  Control\nFraction.  The vested portion of the Option will remain exercisable for  90\ndays following the Date of Termination.  Any remaining unvested portion  of\nthe Option will be forfeited as of the Date of Termination.\n                                \n                               28\n\n\n          (ii) In the event of your Involuntary Termination on or after the\nInitial Vesting Date, you and your eligible dependents shall continue to be\neligible  to  participate  during  the  Benefit  Continuation  Period   (as\nhereinafter  defined)  in the medical, dental, health  and  life  insurance\nplans  applicable to you immediately prior to your Involuntary  Termination\non  the  same  terms and conditions in effect for you and  your  dependents\nimmediately  prior to such Involuntary Termination.  For  purposes  of  the\nprevious sentence, 'Benefit Continuation Period' means the period beginning\non  the date of Date of Termination and ending on the first anniversary  of\nthe  Date of Termination; provided, however, that your coverage under  such\nplans  and  arrangements shall end on the date that you and your dependents\nare  eligible  and elect coverage under the plans of a subsequent  employer\nwhich provide substantially equivalent or greater benefits to you and  your\ndependents.   Following  the end of the Benefit  Continuation  Period,  you\nshall  be  eligible to elect any applicable 'continuation  coverage'  under\nSection 4980B(f) of the Code as if the last day of the Benefit Continuation\nPeriod  was  the  date  of your 'qualifying event'  for  such  continuation\ncoverage.\n\n           (iii)     Except as otherwise provided in this Section 5(c),  as\nof the Date of Termination, you will relinquish the right to any additional\npayments or benefits from the Company under this Agreement.\n\n           (d)  Termination for Cause; Resignation Without Good Reason.  In\nthe  event  you  resign without Good Reason or you are  terminated  by  the\nCompany  for Cause at any time during the Term, the Company shall  pay  you\nthe  full  amount of the accrued but unpaid Salary you have earned  through\nthe  Date  of Termination, plus a cash payment (calculated on the basis  of\nyour rate of Salary then in effect) for all unused vacation time which  you\nmay  have  accrued  as  of the Date of Termination.  You  will  immediately\nforfeit  as  of  the Date of Termination the then unvested portion  of  the\nOption,  all future rights under the Performance Share Arrangement and  any\noutstanding Performance Shares that have not been earned as of the Date  of\nTermination.  You will retain the portion of the Option that has vested  on\nor  prior to the Date of Termination which will remain exercisable  for  90\ndays following the Date of Termination.  In addition, you shall immediately\nrelinquish  the  right  to any additional payments  or  benefits  from  the\nCompany under this Agreement.\n\n           (e)   Death or Disability.  If your employment with the  Company\nends  as  a result of your death or Disability during the Term, the Company\nshall  pay you (or, in the event of your death, your Beneficiary) the  full\namount  of  the accrued but unpaid base salary you have earned through  the\nDate  of Termination, plus a cash payment (calculated on the basis of  your\nrate  of Salary then in effect) for all unused vacation time which you  may\nhave accrued as of the Date of Termination.   In the event of your death or\nDisability,  you  (or  in the event of your death, your  Beneficiary)  will\nretain all Performance Shares that have been earned on or prior to the date\nof  your  death or Disability and you (or in the event of your death,  your\nBeneficiary) will continue to have the opportunity to earn the  Performance\nShares  for the Fiscal Year in which the Involuntary Termination occurs  if\nthe  applicable performance goals for that Fiscal Year are  achieved.   All\nother  rights  under the Performance Share Arrangement  or  and  all  other\noutstanding  Performance  Shares  will be  forfeited  as  of  the  Date  of\nTermination.  You will retain the portion of the Option that has vested  on\nor  prior  to  the  Date  of Termination which will remain  exercisable  in\naccordance  with  the provisions of the Option Plan.  In addition,  in  the\nevent  of  your death, the Option will continue to vest in accordance  with\nthe provisions of the Option Plan during the six-month period beginning  on\nthe  date of your death.  Any remaining portion of the Option which has not\nvested by the end of the period described in the previous sentence will  be\nforfeited.  Except as otherwise provided in this Section 5(e),  as  of  the\nDate  of  Termination,  you will relinquish the  right  to  any  additional\npayments or benefits from the Company under this Agreement.\n                                \n                               29\n\n\n           (f)   Date and Notice of Termination.  Any termination  of  your\nemployment  by the Company or by you during the Term shall be  communicated\nby  a  notice  of  termination to the other party hereto  (the  'Notice  of\nTermination').   The  Notice  of Termination shall  indicate  the  specific\ntermination provision in this Agreement relied upon and shall set forth  in\nreasonable  detail the facts and circumstances claimed to provide  a  basis\nfor  termination of your employment under the provision so indicated.   The\ndate   of  your  termination  of  employment  with  the  Company  and   its\nsubsidiaries  (the 'Date of Termination') shall be determined  as  follows:\n(i) if your employment is terminated for Disability, thirty (30) days after\na  Notice of Termination is delivered to you by the Company (provided  that\nyou  shall  not have returned to the full-time performance of  your  duties\nduring such thirty (30) day period),  (ii) if your employment is terminated\nby  the  Company  in  an Involuntary Termination, the date  the  Notice  of\nTermination is delivered to you by the Company, (iii) if your employment is\nterminated  by  the  Company  for Cause, subject  to  the  applicable  cure\nprovisions,  the  date such notice is delivered to you by the  Company  and\n(iv)  if  you  resign during the Election Window, the date  the  Notice  of\nTermination  is  delivered to the Company by you.  If the  basis  for  your\nInvoluntary  Termination is your resignation for Good Reason, the  Date  of\nTermination shall be, subject to the applicable cure provisions,  ten  (10)\ndays  after the date your Notice of Termination is delivered to the Company\nby you.  The Date of Termination for a resignation of employment other than\nfor Good Reason other than during the Election Window shall be the date the\nNotice  of  Termination is delivered to you by the Company.   The  Date  of\nTermination in the event of your death shall be the date of your death.  If\nyour employment ends as a result of the expiration of the Term, the Date of\nTermination shall be the last day of the Term.\n\n           (g)   No Mitigation.  You shall not be required to mitigate  the\namount  of  any  payment provided for in this Agreement  by  seeking  other\nemployment  or  otherwise, nor shall the amount of any payment  or  benefit\nprovided for in this Agreement be reduced by any compensation earned by you\nas the result of employment by another employer.\n\n          (h)  Right of Setoff.  Anything in this Agreement to the contrary\nnotwithstanding,  upon your termination or resignation of  employment  with\nthe  Company  for any reason, the full amount of the outstanding  principal\nand interest on the Loan shall become due and payable 90 days following the\napplicable  Date of Termination, and the Company and the Lender shall  have\nthe right to apply any and all amounts payable to you under this Section  5\n(or  otherwise payable to you under this Agreement) to the payment  of  the\nfull  amount  of the then outstanding principal and interest on  the  Loan.\nYou  hereby  consent  to such action by the Company and hereby  irrevocably\ndesignate the Company as your agent for purposes of the Loan repayment  and\nauthorize  and  direct  the  Company  to  repay  the  Loan  in  the  manner\ncontemplated  by  this Section 5(h).  Any remaining amount  of  outstanding\nprincipal and interest that is not paid in the manner contemplated by  this\nSection  5(h) shall be due and payable by you within 90 days following  the\napplicable Date of Termination.\n\n          6.   Additional Payment.\n\n           (a)   Gross-Up Payment.  Notwithstanding anything herein to  the\ncontrary,  if  it is determined that any Payment would be  subject  to  the\nexcise tax imposed by Section 4999 of the Code or any interest or penalties\nwith  respect  to  such  excise tax (such excise  tax,  together  with  any\ninterest  or penalties thereon, is herein referred to as an 'Excise  Tax'),\nthen  you shall be entitled to an additional payment (a 'Gross-Up Payment')\nin  an  amount that will place you in the same after-tax economic  position\nthat  you  would  have enjoyed if the Excise Tax had  not  applied  to  the\nPayment.   The  amount of the Gross-Up Payment shall be determined  by  the\nAccounting Firm in accordance with the formula {(E  x (1 - M)\/(1 - T)) - E}\n(or such other formula as the Accounting  Firm deems appropriate which is \nintended to achieve the same result), where\n                               30\n\n     \n          E    equals the Payments which are determined to be 'excess\n               parachute payments' within the meaning of Section 280G(b)(1)\n               of the Code;\n     \n          M    equals  the  sum  of the highest marginal rates1  for  Taxes\n               applicable to you at the time of the Payment; and\n\n          T    equals  M  plus  the  rate of Excise Tax applicable  to  the\n               Payment.\n\n            (b)   Determination  of  Gross-Up  Payment.   Subject  to   the\nprovisions of Section 5(c), all determinations required under this  Section\n6,  including  whether a Gross-Up Payment is required, the  amount  of  the\nPayments  constituting excess parachute payments, and  the  amount  of  the\nGross-Up Payment, shall be made by the Accounting Firm, which shall provide\ndetailed supporting calculations both to you and the Company within fifteen\ndays  of  the  Change in Control Date, your Date of Termination  after  the\nChange in Control Date or any other date reasonably requested by you or the\nCompany  on  which  a determination under this Section 6  is  necessary  or\nadvisable.   The  Company  shall pay to you the  initial  Gross-Up  Payment\nwithin  5  days  of  the receipt by you and the Company of  the  Accounting\nFirm's determination.  If the Accounting Firm determines that no Excise Tax\nis  payable by you, the Company shall cause the Accounting Firm to  provide\nyou  with  an  opinion  that the Accounting Firm has substantial  authority\nunder  the Code and Regulations not to report an Excise Tax on your federal\nincome  tax  return.   Any determination by the Accounting  Firm  shall  be\nbinding  upon  you  and the Company.  If the initial  Gross-Up  Payment  is\ninsufficient  to  cover  the amount of the Excise Tax  that  is  ultimately\ndetermined  to be owing by you with respect to any Payment (hereinafter  an\n'Underpayment'), the Company, after exhausting its remedies  under  Section\n6(c)  below,  shall promptly pay to you an additional Gross-Up  Payment  in\nrespect of the Underpayment.\n\n           (c)  Procedures.  You shall notify the Company in writing of any\nclaim  by  the Internal Revenue Service that, if successful, would  require\nthe  payment  by the Company of a Gross-Up Payment.  Such notice  shall  be\ngiven as soon as practicable after you know of such claim and shall apprise\nthe  Company of the nature of the claim and the date on which the claim  is\nrequested  to be paid.  You agree not to pay the claim until the expiration\nof  the  thirty-day  period following the date  on  which  you  notify  the\nCompany,  or such shorter period ending on the date the Taxes with  respect\nto such claim are due (the 'Notice Period'). If the Company notifies you in\nwriting  prior  to the expiration of the Notice Period that it  desires  to\ncontest  the  claim,  you  shall:  (i) give  the  Company  any  information\nreasonably requested by the Company relating to the claim; (ii)  take  such\naction  in connection with the claim as the Company may reasonably request,\nincluding, without limitation, accepting legal representation with  respect\nto  such  claim  by  an attorney reasonably selected  by  the  Company  and\nreasonably  acceptable to you; (iii) cooperate with  the  Company  in  good\nfaith  in  contesting the claim; and (iv) permit the Company to participate\nin  any proceedings relating to the claim.  You shall permit the Company to\ncontrol all proceedings related to the claim and, at its option, permit the\nCompany to pursue or forgo any and all administrative appeals, proceedings,\nhearings  and  conferences with the taxing authority  in  respect  of  such\nclaim.   If  requested  by the Company, you agree either  to  pay  the  tax\nclaimed and sue for a refund or contest the claim in any permissible manner\nand  to prosecute such contest to a determination before any administrative\ntribunal,  in a court of initial jurisdiction and in one or more  appellate\ncourts  as  the Company shall determine; provided, however,  that,  if  the\nCompany  directs  you  to pay such claim and pursue a refund,  the  Company\nshall  advance  the  amount of such payment to  you  on  an  after-tax  and\ninterest-free basis (the 'Advance').  The Company's control of the  contest\nrelated to the claim shall be limited to the issues related to the Gross-Up\nPayment and you shall be entitled to settle or contest, as the case may be,\nany other issues raised by the Internal Revenue Service or other\n                                \n                               31\n\n\ntaxing  authority.  If the Company does not notify you in writing prior  to\nthe  end  of  the  Notice Period of its desire to contest  the  claim,  the\nCompany shall pay to you an additional Gross-Up Payment in respect  of  the\nexcess parachute payments that are the subject of the claim, and you  agree\nto pay the amount of the Excise Tax that is the subject of the claim to the\napplicable taxing authority in accordance with applicable law.\n\n           (d)   Repayments.  If, after receipt by you of an  Advance,  you\nbecome entitled to a refund with respect to the claim to which such Advance\nrelates, you shall pay the Company the amount of the refund (together  with\nany interest paid or credited thereon after Taxes applicable thereto).  If,\nafter  receipt by you of an Advance, a determination is made that you shall\nnot  be  entitled to any refund with respect to the claim and  the  Company\ndoes not promptly notify you of its intent to contest the denial of refund,\nthen  the amount of the Advance shall not be required to be repaid  by  you\nand  the  amount thereof shall offset the amount of the additional Gross-Up\nPayment then owing to you.\n\n           (e)   Further Assurances.  The Company shall indemnify  you  and\nhold  you  harmless,  on  an  after-tax basis, from  any  costs,  expenses,\npenalties, fines, interest or other liabilities ('Losses') incurred by  you\nwith respect to the exercise by the Company of any of its rights under this\nSection  6,  including,  without limitation,  any  Losses  related  to  the\nCompany's  decision  to  contest a claim  or  any  imputed  income  to  you\nresulting  from any Advance or action taken on your behalf by  the  Company\nhereunder.   The  Company shall pay all legal fees  and  expenses  incurred\nunder  this  Section 6, and shall promptly reimburse you for the reasonable\nexpenses  incurred  by  you in connection with any  actions  taken  by  the\nCompany  or required to be taken by you hereunder.  The Company shall  also\npay all of the fees and expenses of the Accounting Firm, including, without\nlimitation,  the fees and expenses related to the opinion  referred  to  in\nSection 6(b).\n\n          7.   Successors; Binding Agreement; Attorneys Fees.\n\n           (a)   Assumption  by Successor.  The Company  will  require  any\nsuccessor  (whether direct or indirect, by purchase, merger,  consolidation\nor  otherwise) to all or substantially all of the business or assets of the\nCompany expressly to assume and to agree in writing, with a copy to you, to\nperform  this Agreement in the same manner and to the same extent that  the\nCompany  would  be required to perform it if no such succession  had  taken\nplace; provided, however, that no such assumption shall relieve the Company\nof  its  obligations hereunder.  As used in this Agreement,  the  'Company'\nshall  mean  the Company as hereinbefore defined and any successor  to  its\nbusiness  and\/or  assets as aforesaid which assumes and agrees  to  perform\nthis Agreement by operation of law or otherwise.\n\n           (b)   Enforceability; Beneficiaries.  This  Agreement  shall  be\nbinding   upon  and  inure  to  the  benefit  of  you  (and  your  personal\nrepresentatives  and  heirs)  and the Company and  any  organization  which\nsucceeds  to  substantially all of the business or assets of  the  Company,\nwhether  by  means  of  merger,  consolidation,  acquisition  of   all   or\nsubstantially  all  of  the assets of the Company or otherwise,  including,\nwithout  limitation, as a result of a Change in Control or by operation  of\nlaw.   This  Agreement shall inure to the benefit of and be enforceable  by\nyour   personal   or  legal  representatives,  executors,   administrators,\nsuccessors,   heirs,   distributees,  devisees  and   legatees   or   other\nBeneficiary.  If you should die while any amount would still be payable  to\nyou  hereunder  if  you  had continued to live, all  such  amounts,  unless\notherwise  provided herein, shall be paid in accordance with the  terms  of\nthis Agreement to your Beneficiary.\n\n           (c)  Attorney's Fees.  The Company will pay or reimburse you for\nthe  reasonable  attorneys  fees  and  expenses  incurred  by  you  in  the\nnegotiation of this Agreement in an amount not to exceed $5,000.\n\n           8.   Definitions.  For purposes of this Agreement, the following\ncapitalized words shall have the meanings set forth below:\n                               32\n\n\n           'Accounting Firm' shall mean Ernst &amp; Young or, if such  firm  is\nunable  or  unwilling  to perform such calculations,  such  other  national\naccounting  firm as shall be designated by agreement between  you  and  the\nCompany.\n\n           'Beneficiary' shall mean the person or persons designated by you\nin writing to receive any benefits payable to you hereunder in the event of\nyour  death  or,  if no such persons are so designated,  your  estate.   No\nBeneficiary  designation shall be effective unless it  is  in  writing  and\nreceived by the Company prior to the date of your death.\n\n           'Cause'  shall mean a termination of your employment during  the\nTerm  which is a result of (i) your felony conviction or your plea  of  'no\ncontest'  to  a  felony,  (ii) your willful disclosure  of  material  trade\nsecrets  or other material confidential information related to the business\nof  the  Company and its subsidiaries, or (iii) your willful and  continued\nfailure  substantially to perform your duties with the Company (other  than\nany  such failure resulting from your incapacity due to physical or  mental\nillness  or  any  such  actual  or anticipated  failure  resulting  from  a\nresignation  by you for Good Reason) after a written demand for substantial\nperformance  is  delivered to you by the Board, which  demand  specifically\nidentifies  the  manner  in  which the Board believes  that  you  have  not\nsubstantially  performed  your  duties,  and  which  performance   is   not\nsubstantially corrected by you within 10 days of delivery of such demand to\nyou.    For purposes of the previous sentence, no act or failure to act  on\nyour part shall be deemed 'willful' unless done, or omitted to be done,  by\nyou  not  in good faith and without reasonable belief that your  action  or\nomission  was  in  the  best interest of the Company.  Notwithstanding  the\nforegoing, you shall not be deemed to have been terminated for Cause unless\nand  until  there shall have been delivered to you a copy of  a  resolution\nduly  adopted  by the Board at a meeting of the Board called and  held  for\nsuch  purpose (after reasonable notice to you and an opportunity  for  you,\ntogether with your counsel, to be heard before the Board), finding that  in\nthe  good  faith opinion of the Board you were guilty of conduct set  forth\nabove  in  clause (i), (ii) or (iii) of the first sentence of this  section\nand specifying the particulars thereof in reasonable detail.\n\n            'Change  in  Control' shall mean a change  in  control  of  the\nCompany  of  a nature that would be required to be reported in response  to\nItem  6(e) of Schedule 14A of Regulation 14A promulgated under the Exchange\nAct,  whether  or  not  the  Company is  then  subject  to  such  reporting\nrequirement;  provided, however, that, anything in this  Agreement  to  the\ncontrary  notwithstanding, a Change in Control  shall  be  deemed  to  have\noccurred if:\n\n          (i)  any individual, partnership, firm, corporation, association,\n     trust,  unincorporated organization or other entity or person, or  any\n     syndicate or group deemed to be a person under Section 14(d)(2) of the\n     Exchange Act, is or becomes the 'beneficial owner' (as defined in Rule\n     13d-3  of  the General Rules and Regulations under the Exchange  Act),\n     directly or indirectly, of securities of the Company representing  30%\n     or more of the combined voting power of the Company's then outstanding\n     securities  entitled  to  vote in the election  of  directors  of  the\n     Company;\n     \n           (ii)  during  any  period  of  two (2)  consecutive  years  (not\n     including  any  period  prior  to the  execution  of  this  Agreement)\n     individuals who at the beginning of such period constituted the  Board\n     and  any new directors, whose election by the Board or nomination  for\n     election  by the Company's stockholders was approved by a vote  of  at\n     least a majority of the directors then still in office who either were\n     directors  at  the  beginning  of the  period  or  whose  election  or\n     nomination  for  election was previously so approved,  cease  for  any\n     reason to constitute a majority thereof;\n     \n          (iii)     there occurs a reorganization, merger, consolidation or\n     other  corporate  transaction involving the Company (a 'Transaction'),\n     in  each  case, with respect to which the stockholders of the  Company\n     immediately  prior to such Transaction do not, immediately  after  the\n     Transaction, own more than 50 percent of the combined voting power  of\n     the Company or other corporation resulting from such Transaction;\n                               33\n\n     \n           (iv)  all or substantially all of the assets of the Company  are\n     sold, liquidated or distributed.\n     \n           'Change in Control Date' shall mean the date on which the Change\nin Control occurs.\n\n           'Code' shall mean the Internal Revenue Code of 1986, as amended,\nand any successor provisions thereto.\n\n           'Disability' shall mean (i) your incapacity due to  physical  or\nmental illness which causes you to be absent from the full-time performance\nof  your  duties with the Company for six (6) consecutive months, and  (ii)\nyour  failure  to return to full-time performance of your  duties  for  the\nCompany within thirty (30) days after written Notice of Termination due  to\nDisability  is  given  to you.  Any question as to the  existence  of  your\nDisability  upon which you and the Company cannot agree shall be determined\nby a qualified independent physician selected by you (or, if you are unable\nto make such selection, such selection shall be made by any adult member of\nyour immediate family), and approved by the Company.  The determination  of\nsuch physician made in writing to the Company and to you shall be final and\nconclusive for all purposes of this Agreement.\n\n           'Election Window' shall mean the thirty-day period beginning 180\ndays following the Change in Control Date applicable to the Year One Change\nin Control.\n\n          'Exchange Act' shall mean the Securities Exchange Act of 1934, as\namended, and any successor provisions thereto.\n\n           'Good Reason' shall mean a resignation of your employment during\nthe  Term  as  a  result  of any of the following:  (i)  a  meaningful  and\ndetrimental  alteration  in  your  position,  titles,  responsibilities  or\nreporting  responsibilities from that contemplated  under  this  Agreement;\nprovided, however, that a change in your position, titles, responsibilities\nor  reporting responsibilities as a result of or in connection with a  Year\nOne  Change  in  Control shall not constitute an event of Good  Reason  for\npurposes  of this Agreement; (ii) the failure of the Company to  obtain  an\nagreement  reasonably satisfactory to you from any successor to assume  and\nagree to perform this Agreement, as contemplated in Section 7(a) hereof; or\n(iii)  the  reduction by the Company in your annual rate of Salary  or  the\nfailure  of  the Company to pay you in the time and manner contemplated  by\nSection  3(b)  above any Component A Bonus or Component B Bonus  earned  by\nyou;  or (iv) the failure of the Company to grant you the Option or to  pay\nyou  any  Performance  Shares earned by you, in each case,  in  the  manner\ncontemplated by Section 4 above; provided, however, that the failure of the\nstockholders of the Company to approve the Option grant or the  Performance\nShare  Arrangement shall in no event constitute Good Reason hereunder;  and\nprovided  further,  that  an event described in  this  sentence  shall  not\nconstitute  Good Reason unless it is communicated by you to the Company  in\nwriting  within thirty days of the date you know or have reason to know  of\nsuch  event  and  is  not corrected by the Company in  a  manner  which  is\nreasonably satisfactory to you (including full retroactive correction  with\nrespect to any monetary matter) within 10 days of the date of your delivery\nof such written notice to the Company.\n\n          'Initial Vesting Date' shall mean the following:\n\n          1.   In  the  event  a  Year  One Change in Control  occurs,  the\n               earlier  to  occur  of (i) the expiration  of  the  Election\n               Window  and (ii) 18 months after the Effective Date, but  in\n               no   event  prior  to  the  later  to  occur  of  the  first\n               anniversary  of  the  Effective Date and  the  date  of  the\n               stockholder  approval contemplated by Section  4(c)  hereof;\n               and\n\n          2.   In  the  event a Year One Change in Control does not  occur,\n               the later of (i) first anniversary of the Effective Date and\n               (ii)  the  date of the stockholder approval contemplated  by\n               Section 4(c) hereof.\n                               34\n\n\n           'Involuntary  Termination' shall mean (i)  your  termination  of\nemployment  by  the Company and its subsidiaries other than  for  Cause  or\nDisability or (ii) your resignation of employment with the Company and  its\nsubsidiaries for Good Reason.\n\n           'Payment'  means (i) any amount due or paid to  you  under  this\nAgreement,  (ii)  any  amount that is due or paid to you  under  any  plan,\nprogram  or  arrangement  of the Company and its  subsidiaries  (including,\nwithout  limitation, under the equity plans of the Company), and (iii)  any\namount  or  benefit that is due or payable to you under this  Agreement  or\nunder  any plan, program or arrangement of the Company and its subsidiaries\nnot otherwise covered under clause (i) or (ii) hereof which must reasonably\nbe taken into account under Section 280G of the Code and the Regulations in\ndetermining  the  amount  of  the 'parachute  payments'  received  by  you,\nincluding, without limitation, any amounts which must be taken into account\nunder  the Code and Regulations as a result of (A) the acceleration of  the\nvesting  of  any  option, restricted stock or other  equity  award  granted\nhereunder or under any equity plan of the Company, (B) the acceleration  of\nthe  time at which any payment or benefit is receivable by you or  (C)  any\ncontingent severance or other amounts that are payable to you.\n\n           'Regulations'  shall  mean  the proposed,  temporary  and  final\nregulations  under  Section  280G of the Code or  any  successor  provision\nthereto.\n\n           'Securities  Act'  shall mean the Securities  Act  of  1933,  as\namended, and any successor provisions thereto.\n\n           'Severance Payment Date' shall mean five business days following\nthe  later to occur of (i) the Date of Termination applicable under Section\n5(a),  5(b)  or  5(c),  as  the case may be, and (ii)  the  date  that  all\noutstanding principal and interest on the Loan has been repaid in full.\n\n           'Taxes' shall mean the federal, state and local income taxes  to\nwhich you are subject at the time of determination, calculated on the basis\nof  the  highest marginal rates then in effect, plus any additional payroll\nor withholding taxes to which you are then subject.\n\n           'Year  One  Change  in Control' shall mean a Change  in  Control\noccurring on or prior to the first anniversary of the Effective Date.\n\n           9.   Notice.  For the purpose of this Agreement, notices and all\nother communications provided for in this Agreement shall be in writing and\nshall  be deemed to have been duly given when delivered or mailed by United\nStates   registered  mail,  return  receipt  requested,  postage   prepaid,\naddressed to the Board of Directors, Apple Computer, Inc., 1 Infinite Loop,\nM\/S:  381, Cupertino, CA  95401, with a copy to the General Counsel of  the\nCompany,  or  to  you at the address set forth on the first  page  of  this\nAgreement  or  to such other address as either party may have furnished  to\nthe  other in writing in accordance herewith, except that notice of  change\nof address shall be effective only upon receipt.\n\n          10.  Miscellaneous.\n\n           (a)   Amendments, Waivers, Etc.   No provision of this Agreement\nmay  be modified, waived or discharged unless such waiver, modification  or\ndischarge is agreed to in writing.  No waiver by either party hereto at any\ntime  of  any breach by the other party hereto of, or compliance with,  any\ncondition  or  provision of this Agreement to be performed  by  such  other\nparty  shall  be  deemed  a waiver of similar or dissimilar  provisions  or\nconditions  at the same or at any prior or subsequent time.  No  agreements\nor  representations, oral or otherwise, express or implied, with respect to\nthe  subject  matter hereof have been made by either party  which  are  not\nexpressly  set  forth in this Agreement and this Agreement shall  supersede\nall   prior  agreements,  negotiations,  correspondence,  undertakings  and\ncommunications of the parties, oral or written, with respect to the subject\nmatter hereof.\n                               35\n\n\n           (b)   Validity.   The  invalidity  or  unenforceability  of  any\nprovision of this Agreement shall not affect the validity or enforceability\nof  any other provision of this Agreement, which shall remain in full force\nand effect.\n\n           (c)   Representation.  You hereby represent and warrant  to  the\nCompany  that  the execution and delivery by you of this Agreement  to  the\nCompany   will  not  breach  the  terms  of  any  contract,  agreement   or\nunderstanding to which you are a party.  You further acknowledge and  agree\nthat  a  breach  of this representation by you shall render this  Agreement\nvoid ab initio and of no further force and effect.\n\n           (d)   Counterparts.  This Agreement may be executed  in  several\ncounterparts, each of which shall be deemed to be an original  but  all  of\nwhich together will constitute one and the same instrument.\n\n          (e)  Withholding.  Amounts paid to you hereunder shall be subject\nto all applicable federal, state and local wage withholding.\n\n           (f)   Source  of  Payments.  All payments  provided  under  this\nAgreement  (other  than  payments made pursuant to a  plan  which  provides\notherwise or as otherwise expressly provided hereunder), shall be  paid  in\ncash from the general funds of the Company, and no special or separate fund\nshall  be  established, and no other segregation of assets made, to  assure\npayment.  You will have no right, title or interest whatsoever in or to any\ninvestments which the Company may make to aid it in meeting its obligations\nhereunder.   To  the  extent that any person acquires a  right  to  receive\npayments  from the Company hereunder, such right shall be no  greater  than\nthe right of an unsecured creditor of the Company.\n\n           (g)   Headings.   The headings contained in this  Agreement  are\nintended  solely  for  convenience of reference and shall  not  affect  the\nrights of the parties to this Agreement.\n\n          (h)  Arbitration and Expenses.  Any controversy or claims arising\nout  of or relating to this Agreement or the breach of this Agreement  that\ncannot be resolved by you and the Company, including any dispute as to  the\ncalculation of your benefits or any payments hereunder, shall be  submitted\nto  arbitration  in  San Francisco under the supervision  of  the  American\nArbitration  Association ('AAA') by one arbitrator to be mutually  selected\nby  the  Company and you, with the AAA to appoint an arbitrator experienced\nin  the  resolution of executive employment disputes in the event that  the\nparties  are  unable  to  agree on the selection  of  an  arbitrator.   The\nproceedings  at  arbitration shall be confidential, and all  documents  and\nother information relating to the arbitration shall not be disclosed to any\nthird  party except as required by law.  The award of the arbitrator  shall\nbe final and conclusive upon the parties, and the parties shall not contest\nor  seek relief from the award in any court.  Judgment upon the arbitration\naward  may  be  rendered  in  any  court having  jurisdiction  thereof,  or\napplication  may  be made to such court for a judicial  acceptance  of  the\naward  and an order of enforcement, as the case may be.  The Company  shall\npay or reimburse you for any and all costs and expenses reasonably incurred\nby  you  (including  arbitration costs and  legal  fees  and  expenses)  in\nclarifying or enforcing your rights under this Agreement if you prevail  on\nthe  merits  of the claim in respect of which such legal fees and  expenses\nare  incurred, and you shall pay or reimburse the Company for any  and  all\ncosts   and   expenses  reasonably  incurred  by  the  Company   (including\narbitration  costs and legal fees and expenses) in clarifying or  enforcing\nits  rights under this Agreement if the Company prevails on the  merits  of\nthe claim in respect of which such legal fees and expenses are incurred.\n\n           (i)  Governing Law.  The validity, interpretation, construction,\nand  performance  of this Agreement shall be governed by the  laws  of  the\nState  of California applicable to contracts entered into and performed  in\nsuch State.\n                                \n                               36\n\n                                \n                    *       *      *       *\n           If  this  letter sets forth our agreement on the subject  matter\nhereof,  kindly sign and return to the Company the enclosed  copy  of  this\nletter which will then constitute our agreement on this subject.\n\n                                        Sincerely,\n\n                                   APPLE COMPUTER, INC.\n\n\n\n                                   By:  \/s\/ A.C. Markkula, Jr.\n\n\n\nAgreed to as of this 28th day of February, 1996.\n\n_\/s\/ G.F. Amelio___\nGilbert F. Amelio\n                                \n                                \n                               37\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6722],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9539,9544],"class_list":["post-38938","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-apple-computer-inc","corporate_contracts_industries-technology__hardware","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/38938","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=38938"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=38938"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=38938"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=38938"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}