{"id":40323,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/resignation-agreement-apple-computer-inc-and-dr-gilbert-f.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"resignation-agreement-apple-computer-inc-and-dr-gilbert-f","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/resignation-agreement-apple-computer-inc-and-dr-gilbert-f.html","title":{"rendered":"Resignation Agreement &#8211; Apple Computer Inc. and Dr. Gilbert F. Amelio"},"content":{"rendered":"<pre>                                  September 22, 1997\n                                           \n                                           \n                                           \nDr. Gilbert F. Amelio\nApple Computer, Inc.\n1 Infinite Loop\nCupertino, California  95014\n\n                                RESIGNATION AGREEMENT\n                                           \nDear Dr. Amelio:\n\n    This will reflect our agreement concerning your resignation as a director,\nofficer and employee of Apple Computer, Inc. (the 'Company') and each of its\ndirect and indirect subsidiaries (collectively with the Company, the\n'Companies'), in accordance with the terms and conditions set forth below.\n\n    1.   RESIGNATION.  By signing this Resignation Agreement, you (i) hereby\nconfirm your resignation as a director and officer of each of the Companies,\neffective as of July 8, 1997 (the 'Director and Officer Resignation Date') and\n(ii) hereby agree that the date of your resignation as an employee of each of\nthe Companies shall be September 27, 1997 (the 'Employee Resignation Date').\n\n    2.   TERMINATION OF PRIOR AGREEMENTS AND UNDERSTANDINGS.  As of the date of\nthis Resignation Agreement first set forth above (the 'Effective Date'), this\nResignation Agreement supersedes and replaces any written or oral agreements or\nunderstandings between you and any of the Companies, and any of their respective\nofficers, directors, shareholders, employees, agents and affiliates, including,\nwithout limitation, the Employment Agreement between you and the Company dated\nFebruary 28, 1996, as amended May 1, 1997 (the 'Employment Agreement'), and each\nsuch agreement or understanding (including, without limitation, the Employment\nAgreement) is hereby void and of no further force and effect.\n\n    3.   INTERIM PERIOD.  During the period beginning on the Director and\nOfficer Resignation Date and ending on the Employee Resignation Date (the\n'Interim Period'), you will continue to be eligible to receive your base salary\n(at the annual rate in effect immediately prior to the Effective Date) and to\nparticipate in the Company's Employee Stock Purchase Plan and all pension and\nwelfare plans (including but not limited to the 401(k) Plan) in accordance with\nthe terms and provisions applicable to you immediately prior to the Director and\nOfficer Resignation Date, and you agree to take all accrued unused vacation. \nDuring the period through August 15, 1997, you were entitled to office space \nfrom the Company.  You shall be entitled to secretarial support from the Company\nuntil the Employee Resignation Date.  Except as otherwise expressly provided\nherein, you shall cease, as of the Director and Officer Resignation Date, to be\neligible to receive any annual or long-term incentive compensation and benefits\nfrom any of the Companies with respect to periods prior to, on or following the\nDirector and Officer Resignation Date.\n\n    4.   PAYMENTS AND BENEFITS IN CONNECTION WITH YOUR RESIGNATION.  Subject to\nSections 6, 9 and 10 below, the Company agrees to pay or to provide you with the\ncompensation and benefits described below in connection with your resignation of\nemployment:\n\n         (a)  As soon as reasonably practicable following the date which is the\nlater of (i) the Expiration of the Revocation Period (as such phrase is defined\nin Section 10 below) (but in no event later than thirty (30) days following the\nexpiration of such period) or (ii) the perfection of the security interest for\nthe Loan as described in Section 4(g) (but in no event later than thirty (30)\ndays following the expiration of such period), the Company will make a one-time\nlump sum cash payment to you of Six Million Seven Hundred Thirty-One Thousand\nEight Hundred Seventy Dollars and Ninety-Six Cents ($6,731,870.96), less\napplicable withholding taxes.  The Company will deduct from this payment the sum\nof One Million Five Hundred Thousand Dollars ($1,500,000) as a partial repayment\nof the \n\n\n\n\nbalance of the Loan (as defined in Section 4(g) below) as of the date on which\nsuch payment is made to you; the amount will be applied first to accrued\ninterest on the Loan as of such date, and the balance of said amount shall be\napplied to the then remaining principal balance on the Loan.\n\n         (b)  As soon as practicable following  the date which is the later of\n(i) the Expiration of the Revocation Period (but in no event later than thirty\n(30) days following the expiration of such period) or (ii) the perfection of the\nsecurity interest for the Loan as described in Section 4(g) (but in no event\nlater than thirty (30) days following the expiration of such period), you shall\nreceive an additional payment from the Company in the amount of One Million\nDollars ($1,000,000), less applicable withholding taxes, representing the\nComponent B Bonus (as defined in the Employment Agreement) for the fiscal year\nof the Company ending September 27, 1997 (the '1997 Fiscal Year').\n\n         (c)  You acknowledge that, as of the Director and Officer Resignation\nDate, you were a participant in the Company's Senior Officers Restricted Share\nPlan (the 'SORP').  You shall be eligible for an award of performance shares\nunder the SORP for the 1997 Fiscal Year, subject to the Company achieving the\napplicable performance goals and targets established for that year.  A copy of\nsaid goals and targets is attached hereto as EXHIBIT A.  The actual number of\nperformance shares and cash amount, if any, awarded to you for the 1997 Fiscal\nYear will be determined by the Compensation Committee based upon the goals and\ntargets for that year, and the percentage of your target award paid to you will\nbe the same percentage paid to other senior officers of the Company who were\nparticipants in the SORP for the entire 1997 Fiscal Year.  The performance\nshares and cash amounts, if any, payable to you under the SORP for the 1997\nFiscal Year shall be payable to you at the same time as payments are made to\nother SORP participants.  Except as provided in this Section 4(c), no other\namounts shall be payable to you under the SORP.  \n\n         (d)  On the Employee Resignation Date, the Company will pay you any\naccrued but unpaid salary you have earned through such date.\n\n         (e)  During the Benefit Continuation Period (as hereinafter defined),\nyou and your eligible dependents shall continue to be eligible to participate in\nthe medical, dental and health insurance plans applicable to you immediately\nprior to the Employee Resignation Date on the same terms and conditions in\neffect for you and your dependents immediately prior to the Employee Resignation\nDate, or equivalent coverage obtained by the Company.  For purposes of the\nprevious sentence, 'Benefit Continuation Period' means the period beginning on\nthe Employee Resignation Date and ending on the earliest to occur of (i) the\ndate you revoke the Release (as defined in Section 9 below), (ii) the Employee\nResignation Date (if you fail to execute the Release), or (iii) February 2,\n2001; provided, however, that your coverage under such plans and arrangements\nshall end on the date that you are eligible for comparable coverage under the\nplan of a subsequent employer.  Following the end of the Benefit Continuation\nPeriod, you shall be eligible to elect any applicable 'continuation coverage'\nunder Section 4980B(f) of the Internal Revenue Code of 1986, as amended, as if\nthe last day of the Benefit Continuation Period were the date of your\n'qualifying event' for such continuation coverage.\n\n         (f)  Following the Expiration of the Revocation Period, you shall be\nentitled to keep any of the Company computer and software products in your\noffice or made available to you at your home for business use as listed in\nEXHIBIT B; provided, however, that you agree to delete from such products all\nconfidential and propriety information of the Companies.  During the Benefit\nContinuation Period, you shall continue to be eligible to purchase Company\nproducts for your personal use at the discounted price then offered to employees\nof the Company; provided, however, you shall be precluded from purchasing at a\ndiscounted price any more than ten (10) comparable items in any twelve- (12)\nmonth period.  In addition, the Company will deliver one 'Spartacus' unit to you\nwithin ninety (90) days of the date on which such product becomes available on\nthe commercial market.\n\n         (g)  In consideration of your execution and delivery of the Release,\nthe Company hereby agrees to extend the maturity date of the loan made to you\npursuant to Section 3(c) of the Employment Agreement (the 'Loan') until\nSeptember 15, 1998, whereupon the then entire outstanding principal amount\nthereof, together with all accrued and unpaid interest, shall be payable in\nfull; provided, \n\n\n\n\nhowever, that, if you fail to execute the Release or if you revoke the Release,\nthen the Loan shall be immediately due and payable as of the Employee\nResignation Date.  The Loan shall be fully recourse to you and shall be secured\nby your residence in Lake Tahoe ('Stonewood'), which you have represented to the\nCompany as having a current fair market value of approximately Six Million\nDollars ($6,000,000) to Seven Million Dollars ($7,000,000).  You hereby agree to\nexecute such documents and to take such further actions as the Company may deem\nnecessary or advisable to effect and to perfect such security interest. \nNotwithstanding the provisions of the promissory note representing the Loan, you\nexpressly acknowledge and agree that, as of the Employee Termination Date, the\nLoan shall bear interest at the rate of seven percent (7%) per annum. You may\nprepay some or all of the principal amount of the Loan, and any portion of the\naccrued but unpaid interest on the Loan, at any time, without premium or\npenalty. The Company may reduce or set off against any amounts that the Company\nowes to you any amounts currently due and payable by you under the Loan.\n\n         (h)  Any stock options granted to you pursuant to the Employment\nAgreement, the Apple Computer, Inc. 1990 Stock Option Plan, or other plan or\nprogram which are vested by their terms as of the Employee Resignation Date\nshall remain exercisable for ninety (90) days following the Employee Resignation\nDate.  Upon expiration of such ninety- (90) day period, such vested options\nshall expire and be of no further force or effect, to the extent not previously\nexercised.  Any unvested portion of the options so granted will be forfeited as\nof the Employee Resignation Date.  As of the Director and Officer Resignation\nDate, you shall not be eligible to participate in any option repricing or\nexchange program announced by the Company and you hereby irrevocably waive any\nright to participate in any such program.\n\n         (i)  The Company shall have no obligation to make any payments to you\nwith respect to your airplane, whether pursuant to the airplane use arrangement\nreferred to in Section 3(f) of the Employment Agreement or otherwise, for any\nperiod on and after the Director and Officer Resignation Date.\n\n    5.   NO OTHER SEVERANCE, PAYMENTS OR BENEFITS.  Except as otherwise\nexpressly provided herein, you hereby acknowledge and agree that you are not\nentitled to any other compensation or benefits from any of the Companies or any\nof their respective officers, directors, shareholders, employees, agents or\naffiliates in connection with your resignation of employment or otherwise and\nthat, except as expressly set forth herein, you are not entitled to any\nseverance or similar benefits under any plan, program, policy or arrangement,\nwhether formal or informal, written or unwritten, of any of the Companies or any\nof their respective officers, directors, shareholders, employees, agents or\naffiliates.\n\n    6.   PROTECTION OF THE COMPANY'S INTERESTS.\n\n         (a)  On the Employee Resignation Date, you shall return to the Company\nall property of the Companies then in your possession and all property made\navailable to you in connection with your service to any of the Companies, other\nthan property described in Section 4(f), including, without limitation, your\nCompany credit cards, and all records, drawings, manuals, reports, papers and\ndocuments kept or made by you in connection with your employment as a director,\nofficer or employee of any of the Companies, including any files, memoranda,\ncorrespondence, vendor and customer lists, financial data, keys and security\naccess cards, and any other materials or documents described in Section 6(c)\nbelow.\n\n         (b)  You shall keep the terms of this Resignation Agreement and all\ncommunications with any of the Companies and its counsel regarding the same\nconfidential.\n\n         (c)  You will not, at any time, directly or indirectly divulge or\ndisclose to any person, firm, association or corporation, or use for your own\nbenefit, gain or otherwise, any confidential or proprietary plans, products,\ncustomer lists, trade secrets, technical or business materials, or information\nof any of the Companies or in the possession of any of the Companies, including\nany or all information or instructions, technical or otherwise, issued or\nproclaimed for the sole use of the Companies, or any confidential information\nthat was disclosed to you or in any way acquired by you during your employment\nwith any of the Companies.\n\n\n\n\n         (d)  During the period beginning on the Director and Officer\nResignation Date and ending on the date which is twelve (12) months after the\nEmployee Resignation Date, you shall not, whether for your own account or for\nthe account of any other individual, partnership, firm, corporation or other\nbusiness organization (other than the Company), intentionally solicit, endeavor\nto entice away from any of the Companies, or otherwise interfere with the\nrelationship of any of the Companies with any person with a base salary of at\nleast Seventy-Five Thousand Dollars ($75,000) per year who is employed by or\notherwise engaged to perform services for any of the Companies.\n\n         (e)  If you breach in any material respect the provisions of this\nSection 6, you shall immediately forfeit any and all rights to future payments\nor benefits under Sections 3 and 4 above.\n\n    7.   COOPERATION.  You agree that you will make yourself available at\nreasonable times and intervals to participate in the conduct of and preparation\nfor any pending or future litigation to which any of the Companies is a party\nand in which your experience or knowledge may be relevant.  You shall be\nreimbursed for your reasonable travel and out-of-pocket expenses incurred by\nvirtue of your cooperation as described in this Section 7.  If such cooperation\ntakes more than twenty (20) hours, the Company agrees to reimburse you, at the\nrate of Five Hundred Dollars ($500.00) per hour, for time spent in excess of\ntwenty (20) hours.  In no event shall this provision be deemed to pertain to or\naffect the nature or substance of employee testimony at deposition or trial or\nin any other truthful testimony at deposition or trial or in any other\ncircumstances or your obligation to give such testimony.\n\n    8.   ACKNOWLEDGMENT.  By signing this Resignation Agreement, you hereby\nacknowledge and confirm the following:\n\n         (a)  You were advised by the Company in connection with your\nresignation to consult with an attorney of your choice prior to signing this\nResignation Agreement and the Release and to have such attorney explain to you\nthe terms of this Resignation Agreement and the Release including, without\nlimitation, the terms relating to your release of claims arising under the Age\nDiscrimination in Employment Act of 1967.\n\n         (b)  You were given not less than twenty-one (21) days to consider the\nterms of this Resignation Agreement and the Release and to consult with an\nattorney of your choosing with respect thereto and that, for a period of seven\n(7) days following your execution of the Release, you have the right to revoke\nthe Release in accordance with the terms set forth below.\n\n    9.   RELEASE.  You agree to execute and deliver to the Company a release in\nthe form of EXHIBIT C attached hereto (the 'Release') on the Employee\nResignation Date.  If you do not deliver the Release to the Company on the\nEmployee Resignation Date, or if you subsequently revoke the Release in the\nmanner contemplated by Section 10 below, the Company will have no obligation to\npay or provide you with any of the payments or benefits contemplated by Sections\n3 and 4 above.\n\n    10.  REVOCATION.  You shall have the right to revoke the Release during the\nseven- (7) day period (the 'Revocation Period') commencing immediately following\nthe date you sign and deliver the Release to the Company.  The Revocation Period\nshall expire at 5:00 p.m. (Pacific time) on the seventh day immediately\nfollowing the date that the Release is executed by you; provided, however, that\nif such seventh day is not a business day, then the Revocation Period shall\nextend to 5:00 p.m. (Pacific time) on the next succeeding business day.  No such\nrevocation by you shall be effective unless it is in writing and signed by you,\nand received by the Company prior to the Expiration of the Revocation Period. \nFor purposes of this Agreement, the phrase 'Expiration of the Revocation Period'\nshall mean the expiration of the Revocation Period without your having revoked\nthe Release in accordance with this Section 10.\n\n    11.  ACCEPTANCE.  You may indicate your acceptance of this Agreement by\nsigning and dating both counterparts of this Agreement and delivering one such\ncopy to the Company by no later than 5:00 p.m. (Pacific time) on September 26,\n1997.  This offer shall expire without further action by the Company if a signed\nand dated counterpart of this Agreement is not returned to the Company by the\ntime and date set forth above.\n\n\n\n\n    12.  TAX CONSIDERATIONS.  Any payments made to you under this Resignation\nAgreement shall be reduced by the full amount legally required to be withheld\nfor federal, state or local tax purposes by the Company.\n\n    13.  MODIFICATION OF EMPLOYEE BENEFIT PLANS.  Nothing in this Resignation\nAgreement shall prohibit the Company from modifying, terminating or otherwise\namending any or all of the Company's pension and welfare plans, if such\ntermination, modification or amendment similarly affects other executives of the\nCompany as well as you.\n\n    14.  MODIFICATION.  This Resignation Agreement may not be amended or\nmodified except by a writing executed by you and the Company that specifically\nrefers to this Resignation Agreement and expressly states that it is intended to\namend one or more of the terms of this Resignation Agreement or to supersede\nthis Resignation Agreement.\n\n    15.  VALIDITY.  The invalidity or unenforceability of any provision of this\nResignation Agreement shall not affect the validity or enforceability of any\nother provision of this Agreement, which shall remain in full force and effect.\n\n    16.  REMEDIES IN THE EVENT OF FUTURE DISPUTE.\n\n         (a)  Except as provided in Section 16(b) below, in the event of any\nfuture dispute, controversy or claim between the parties arising from or\nrelating to this Resignation Agreement, its breach, or any matter addressed by\nthis Resignation Agreement, the parties will first attempt to resolve the\ndispute through confidential mediation to be conducted in San Francisco by a\nmember of the firm of Gregorio, Haldeman &amp; Piazza, Mediated Negotiations, 625\nMarket Street, Suite 400, San Francisco, California 94105.\n\n         (b)  In the event that a dispute arises concerning compliance with\nthis Resignation Agreement, the parties agree to resolve any such dispute by\nconfidential binding arbitration by the American Arbitration Association in San\nFrancisco, pursuant to its California Employment Dispute Resolution Rules, and\njudgment upon the award rendered by the arbitrator(s) may be entered by any\ncourt having jurisdiction of the matter.  The prevailing party in such\narbitration shall be entitled to recover costs and attorneys' fees incurred in\narbitrating the dispute and in preparing for such arbitration.\n\n    17.  INDEMNIFICATION.  All rights of indemnification previously provided by\nthe Company to you by the Company's bylaws and\/or the Indemnification Agreement\ndated November 10, 1994, as well as such rights to indemnification that you have\nby law, shall continue in full force and effect in accordance with their terms,\nfollowing the date of this Agreement.\n\n    18.  GOVERNING LAW.  This Resignation Agreement shall be governed by, and\nconstrued in accordance with, the laws of California applicable to contracts to\nbe performed exclusively therein\n\n\n\n\n    Your signature on the line below constitutes your agreement with each\nprovision contained herein.\n\n\n                             Apple Computer, Inc.\n\n\n\n                                  By:   \/s\/ John B. Douglas III\n                                     ---------------------------------------\n                                            John B.  Douglas III\n                                  Senior Vice President, General Counsel \n                                  and Secretary\n\n\nI UNDERSTAND AND AGREE WITH THE ABOVE:\n\n\n\/s\/ Gilbert F. Amelio\n------------------------------\nGilbert F. Amelio\n\nDated:  September 23, 1997\n      --------------------\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":[9539,9551],"class_list":["post-40323","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__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40323","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=40323"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40323"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40323"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40323"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}