Separation Agreement - Apple Computer Inc. and Ian Diery
Separation Agreement
In consideration of the mutual agreements set forth below, Ian Diery
("Diery") and Apple Computer, Inc. ("Apple") agree to the following terms
and conditions of this Separation Agreement (the "Agreement"):
1. Nature of Business. Apple is in the business of designing,
developing, producing, selling and marketing computer systems, related
products and services. The business practices of Apple and the market
conditions in which Apple operates change rapidly and these changes have
necessitated prompt changes in management, and/or managers'
responsibilities. These changes are needed from time to time in the high
level management positions such as those for which Diery has been employed.
2. Resignation from Office. Employee hereby resigns from his
position as Executive Vice President and General Manager, Personal Computer
Division, effective as the date of this Agreement. Diery hereby resigns
from all other positions he holds on behalf of Apple, its subsidiaries and
affiliates, which positions are set forth at Exhibit A hereto. Diery
agrees to sign all appropriate documentation prepared by Apple to
facilitate these resignations.
3. Employment Status/Termination. Subject to paragraph 11 below,
from the date of this Agreement through October 15, 1995 ("Termination
Date") or such earlier date as a result of an event under paragraph 11,
Diery will continue to devote his best efforts to Apple and will remain an
employee of and fiduciary to Apple reporting to Edward B. Stead. Until
Termination Date, Diery shall continue to receive his regular salary,
participate in the Apple's FY '95 Senior/Executive Incentive Bonus Plan
("Bonus Plan") and receive medical insurance benefits and agrees that he
will use his accrued vacation and sabbatical before Termination Date.
Apple will designate Diery as a participant in Apple's Executive Severance
Plan ("Plan") on or about August 15, 1995, or such earlier date as
determined between the parties, and Diery will become eligible to receive
the appropriate compensation and benefits under that Plan.
4. Compensation and Benefits Upon Termination. Subject to paragraph
11 below, at Termination Date, Apple will pay the following:
a. Severance Payments. Under the Plan, on Termination Date as
defined above, Diery is eligible to receive a lump sum severance payment
equal to 7 months' pay and a proration of his FY '96 bonus, less
deductions. Subject to paragraph 11 below, Apple will pay Diery eight
hundred eighty seven thousand, four hundred eighty-five thousand dollars
($887,485), less deductions, in full satisfaction of all Apple's
obligations under the Plan, Bonus Plan and otherwise. Diery shall be paid
on or about Termination Date and such payment constitutes full compensation
under the Plan , Bonus Plan and otherwise. There shall be no other
payments to Diery except as stated in this paragraph 4(a) and in paragraph
3 above and the amount of such payments shall be subject to paragraph 11.
b. Satisfaction of Repayment Obligations. At Termination Date,
Diery shall have satisfied any and all repayment obligations to Apple
including specifically his obligation to satisfy his promissory note to
Apple relating to a down payment loan. A copy of the promissory note date
December 6, 1989 is attached hereto as Exhibit B. Diery and Apple agree
that the principal and interest due and owing as of October 15, 1995 is two
hundred sixty-one thousand, seven hundred ninety dollar and seventy-one
cents ($261,790.71). If this amount (or adjusted amount in the event
Diery's Termination Date is prior to October 15, 1995) remains unpaid on
Termination Date, Diery agrees that the entire sum may be withheld from the
amounts otherwise payable to him under this Agreement.
c. Stock Options. The Board or Apple's Stock Option Committee
(the "Committee") previously granted Diery options to purchase shares of
Apple Common Stock under Apple's 1981 and 1990 Stock Option Plans (the
"1981 and 1990 Plans") and options to purchase shares of stock under
Apple's 1987 Executive Long Term Stock Option Plan ("ELTSOP"). Such
options shall continue to vest and be exercisable in accordance with the
terms of the grant agreement issued to Diery with respect to such grants,
and the terms of the 1981 and 1990 Stock Option Plans and the ELTSOP
administered by the Board or the Committee.
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d. Receipt of Documentation. Diery acknowledges that he has
previously received from Apple copies of pertinent portions of Apple's
Senior/ Executive Bonus Program, the 1981 and 1990 Stock Option Plans,
Apple's ELTSOP, the Vacation and Holiday Policies, and Apple's Benefit
Plans relating to health care, life insurance, accidental death and
disability, short and long term disability and Savings Plans. Diery
understands and agrees to be bound by the written terms and conditions of
these various plans, policies or programs, and agrees that Apple has
reserved the right and option, in its sole discretion, to change,
interpret, modify or terminate these and all other plans, policies or
programs at any time without Diery's consent.
e. No Other Benefits. Diery will not be entitled to receive
any other compensation, bonus or benefits provided by, through or on behalf
of Apple, its affiliates or subsidiaries, other than benefits that are
vested as of the date of this Agreement and that are payable in accordance
with the terms of any applicable Benefit Plan, or otherwise provided for
herein.
5. Confidentiality. The terms of this Agreement are confidential.
Neither Diery nor Apple will at any time disclose to any third party the
fact or terms of this Agreement, except as authorized by this agreement or
as required by law. Diery may also make such disclosure to his spouse, tax
advisor or lawyer, all of whom shall be instructed to keep the information
disclosed to them confidential; any disclosure by any such party shall be
deemed a disclosure by Diery. Apple and Diery shall not disparage each
other in their communications in response to all inquiries from the press,
public media or any other third parties regarding this Agreement or Diery's
employment termination.
6. Trade Secrets, Proprietary and Confidential Information. Diery
agrees to comply with Apple's "Proprietary Rights and Information
Agreement" which is attached hereto as Exhibit C to this Agreement
In addition, Diery agrees to continue to abide by the principles and
guidelines in Apple's Global Ethics brochure, the terms of which are
incorporated herein.
On or before Termination Date, Diery agrees to promptly return all
proprietary and confidential information, including but not limited to all
inventions, discoveries, improvements, computer programs, designs,
documentation, notes, plans, drawings and copies thereof to Apple.
Diery and Apple agree that this section regarding Trade Secrets,
Proprietary and Confidential Information shall survive the termination of
this Agreement.
7. Fiduciary Duties/Non-Competition/Non-Solicitation. Diery further
recognizes that Apple's work force constitutes an important and vital
aspect of its business. Diery agrees, therefore, that both during his
employment with Apple,and for a period of six months following
Termination Date, he shall notsolicit, or assist others to become employed
by any firm, company or other business enterprise. Diery further
represents that he has no time prior to this Agreement solicited or
encouraged any employee to leave Apple.
Diery will retain his fiduciary responsibilities to Apple to the
extent provided by law. For six months following Termination Date, Diery
will not, without the prior express written consent of Apple, compete with
Apple by engaging in or assisting others to develop or market products or
services that are in competition with Apple products or services. Diery's
agreement not to compete is limited to the states of California and New
York only.
Diery and Apple also agree, that upon a breach or violation or
threatened breach or violation of any confidentiality, trade secrets, non-
competition or non-solicitation agreement by Diery contained herein, or if
any provision of Sections 5, 6, or 7 of this Agreement, Apple, in addition
to all other remedies which might be available to it, shall be entitled as
a matter of right to equitable relief in any court of competent
jurisdiction, including the right to obtain injunctive relief or specific
performance. Diery and Apple agree that the remedies at law for any such
breach or violation are not fully adequate and that the injuries to Apple
as a result of the continuation of any breach or violation are incapable of
full calculation in monetary terms and therefore constitute irreparable
harm. This paragraph 7 shall survive the termination of this Agreement.
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8. Indemnification. All rights of indemnification previously
provided by Apple to Diery by Apple's By-Laws and/or by the Indemnification
Agreement dated October 16, 1989, shall continue in full force and effect
in accordance with their terms, following the date of this Agreement. A
copy of Diery's Indemnification Agreement is attached hereto as Exhibit D
to this Agreement.
9. Successors. Apple will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of Apple to expressly
assume and agree to perform this Agreement in the manner and to the same
extent that Apple would be required to perform it if no such succession had
taken place. Failure of Apple to obtain such assumption and agreement
prior to the effectiveness of any such succession shall entitle Diery to
the benefits listed in paragraph 4 of this Agreement, subject to the terms
and conditions therein.
10. Governing Law. The validity, interpretation, effect, and
enforcement of this Agreement shall be governed by the laws of the State of
California without regard to its choice of law principles.
11. Entire Agreement. This Agreement, and Exhibits A, B, C and D to
this Agreement, set forth the entire Agreement and understanding between
Diery and Apple, and supersede any other negotiations, agreements,
understandings, oral agreements, representations or past or future
practices, whether written or oral, by Apple. This Agreement may be
amended only by written agreement, signed by the parties to be bound by the
amendment. Parol evidence will be inadmissible to show agreement by and
between the parties to any term or condition contrary to or in addition to
the terms and conditions contained in this Agreement.
Each Apple plan or policy referred to herein directly or by
implication (except the 1981 and 1990 Stock Option Plans and the ELTSOP) is
incorporated herein only insofar as it does not contradict this Agreement.
If any inconsistencies exist between this Agreement and any such plan or
policy, this Agreement shall control. If any inconsistencies exist between
this Agreement and any such plan or policy, this Agreement and the 1981 and
1990 Stock Option Plans or the ELTSOP, those stock plans shall control.
Nothing in any such plan, policy, or this Agreement shall change the
At Will nature of Diery's employment under this Agreement and under his
employment agreement dated September 15, 1989, by which either party can
terminate Diery's employment without regard to cause. Diery understands
and agrees that Apple is obligated to make the payments outlined in
paragraph 3 and 4 of this Agreement in the event Diery's employment
terminates before Termination Date for any reason other than:
a. by Apple for "Business Reasons" as defined below;
b. by Diery for any reason, except if Diery's employment is
terminated for any material breach by Apple of this Agreement. In this
event, Diery will be entitled to the payments outlined in paragraph 3 and 4
adjusted according to the actual, accelerated Termination Date and
offsetting any payments made to him prior to the actual, accelerated
Termination Date;
For purposes of this Agreement only, "Business Reasons" shall mean that you
are terminated for the following reasons:
(i) you have engaged in unfair competition with Apple; or
(ii) you have induced any customer of Apple to breach any
contract with Apple;
(iii) you have made any unauthorized disclosure of or
otherwise misused any of the secrets or confidential information of Apple;
(iv) you have committed any act of embezzlement, fraud or
theft with respect to any Apple property;
(v) you have violated any Apple policy or guideline or the
terms of this Agreement;
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(vi) you have caused material loss, damage or injury to or
otherwise endangered the property, reputation or employees of Apple;
(vii) you have engaged in malfeasance, negligence or
misconduct, or failed to perform reasonable duties and responsibilities
consistent with your fiduciary duties and responsibilities to Apple; or
(viii) you have failed to act in accordance with
specific, reasonable and lawful instructions from Apple's
Chief Executive Officer, or his delegate.
12. Right to Advice of Counsel. Diery understands that he has the
right to have this Agreement reviewed by his lawyer and acknowledges that
Apple has encouraged him to consult with his lawyer so that he is fully
aware of his rights and obligations under this Agreement. Diery
acknowledges that he has done so.
13. Modification. This Agreement may not be amended, modified,
changed or discharged in any respect except as agreed in writing and signed
by Diery and the Chief Executive Officer of Apple Computer, Inc.
14. Severability and Interpretation. In the event that any provision
or any portion of this Agreement is held invalid or unenforceable by a
court of competent jurisdiction, such provision or portion thereof shall be
considered separate and apart from the remainder of this Agreement and the
other provisions shall remain fully valid and enforceable, provided that,
if paragraphs 5, 6, 7, 19 and 21 are held to be invalid or unenforceable in
response to a motion, argument or other act by Diery, then Apple, at its
sole discretion, may rescind the Agreement and recover all consideration
paid to Diery under the Agreement.
15. Notices. All notices required by this Agreement shall by given
in writing either by personal delivery or by first class mail, return
receipt requested. Notices shall be addressed as follows:
To Apple: Apple Computer, Inc.
1 Infinite Loop, Mail Stop 38-I
Cupertino, California 95014
Attention: General Counsel
To Diery : 4175 Woodside Road
Woodside, California 94062
or in each case to such other address as Diery or Apple shall notify the
other. Notice given by mail shall be deemed given five (5) days following
the date of mailing.
16. Miscellaneous. The rights and obligations of Apple under this
Agreement shall inure to the benefit of and shall be binding upon the
present and future subsidiaries of Apple, any and all subsidiaries of a
subsidiary, all affiliated corporations, and successors and assigns of
Apple. No assignment of this Agreement by Apple will relieve Apple of its
obligations. Diery shall not assign any of his rights and/or obligations
under this Agreement and any such attempted assignment will be void. This
Agreement shall be binding upon Diery heirs, executors, administrators, or
other legal representatives and their legal assigns.
17. Damage Limitation. At Termination Date, Diery shall not be
entitled to recover any compensation, benefits or damages except as
specifically described in this Agreement. This damage waiver provides that
no damages (including without limitation, special, consequential, general,
liquidated or punitive damages) shall be sought or due from Apple.
18. Waiver. A waiver by either party of any of the terms or
conditions of this Agreement in any instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of
any subsequent breach thereof. All remedies, rights, undertakings,
obligations, and agreements contained in this Agreement shall be cumulative
and none of them shall be in limitation of any other remedy, right,
undertaking, obligation or agreement of either party.
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19. Release. Diery hereby completely releases and forever discharges
Michael Spindler, Apple, its officers, directors, agents, employees,
attorneys, insurers, subsidiaries and affiliates ("Apple Parties") from,
and covenants not to sue any Apple Party with respect to, all claims,
rights, demands, actions, obligations, debts, sums of money, damages
(including but not limited to general, special, punitive, liquidated and
compensatory damages) and causes of action of every kind, nature and
character, known and unknown, in law or equity, connected with Diery's
employment relationship with the Apple Parties, or any other act or
omission of any Apple Party which may have occurred prior to the date this
Agreement is signed. Diery further agrees that by his acceptance and
negotiation of the payment provided for in paragraph (4) of this Agreement,
he thereby completely releases and forever discharges the Apple Parties
from, and covenants not to sue any Apple Party with respect to, all claims,
rights, demands, actions, obligations, debts, sums of money, damages
(including but not limited to general, special, punitive, liquidated and
compensatory damages) and causes of action of every kind, nature and
character, known and unknown, in law or equity, connected with Diery's
employment relationship with the Apple Parties, or the termination of such
relationship, or any other act or omission of any Apple Party which may
have occurred prior to Termination Date. This release and discharge
includes, but is not limited to, all "wrongful discharge" claims; all
claims relating to any contracts of employment express or implied; any
covenant of good faith and fair dealing express or implied; any tort of any
nature: any federal, state, or municipal statute or ordinance; any claims
under the California Fair Employment and Housing Act, Title VII of the
Civil Rights Act of 1964, 42 U.S.C. Section 1981, and any other laws and
regulations relating to employment discrimination and any and all claims
for attorney's fees and costs. Diery specifically acknowledges that the
foregoing release includes a complete release and discharge of all Apple
Parties from any and all claims, damages of any kind, and claims for
attorneys fees and costs, under the Age Discrimination in Employment Act of
1967 ("ADEA") as amended by the Older Worker Benefit Protection Act
("OWBPA"). Diery and Apple agree that part of the consideration payable to
Diery under this Agreement is consideration that Diery would not otherwise
be entitled to and is in consideration for Diery's release of claims under
the ADEA as amended by the OWBPA.
Diery acknowledges that he understands the protections provided by the
OWBPA and that the provisions of the OWBPA have been met by the terms of
this Agreement. Diery states that he knowingly and voluntarily enters into
this Agreement. Diery acknowledges that this Agreement is written in a
manner calculated to be understood by him. Diery further acknowledges that
this Agreement refers without limitation to rights under the Age
Discrimination in Employment Act. Diery understands that by this
Agreement, he does not waive rights or claims that may arise after the date
the Agreement is executed. Diery acknowledges that he is entering this
Agreement in exchange for consideration in addition to anything of value to
which he already is entitled due to his employment with Apple. Further,
Diery acknowledges that this release of claims under the OWBPA is not
requested in connection with an exit incentive program or other employment
termination program offered to a group or class of employees within the
meaning of OWBPA. Diery acknowledges that he has been allowed up to 21
(twenty-one) days from the date that he received this Agreement to accept
its terms. Diery acknowledges he has consulted with an attorney about the
Agreement. Diery acknowledges that after he signs the Agreement, he will
then be given seven (7) days following the date on which he signs the
Agreement to revoke it and that this Agreement will only become effective
after this seven (7) day period has lapsed. Any such revocation must be in
writing signed by Diery and immediately delivered to Apple's General
Counsel.
Diery has read and expressly waives Section 1542 of the California
Civil Code, which 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.
This waiver is not a mere recital, but is a known waiver of rights and
benefits. This is a bargained-for provision of this Agreement and is
further consideration for the covenants and conditions contained herein.
The Apple Parties hereby release and forever discharge Diery, his
agents and attorneys from, and covenant not to sue Diery, his agents and
attorneys with respect to, all claims, rights, demands, actions,
obligations, debts, sums of money, damages, and causes of action ("claims")
arising from his employment relationship with Apple to the extent permitted
by law and public policy, except for any claims arising from any
intentional acts of misconduct, or any other act taken in bad faith or
without a reasonable belief that it was in the best interests of the Apple
Parties.
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20. Cooperation. Diery agrees that at all times he will make himself
available, for such amounts of time as Apple's General Counsel shall
reasonably deem necessary, to participate in the conduct of and preparation
for any pending or future litigation to which Apple is a party and in which
his experience or knowledge may be relevant. Diery shall be reimbursed for
reasonable travel and out-of-pocket expenses incurred by virtue of his
cooperation as described in this paragraph. In no respect shall this
provision be deemed to pertain to or affect the nature or substance of
Diery testimony at deposition or trial or in any other truthful testimony
at deposition or trial or in any other circumstances.
21. Remedies in Event of Future Dispute.
a. Except as provided in subparagraph (b) below, in the event
of any future dispute, controversy or claim between the parties arising
from or relating to this Agreement, its breach, any matter addressed by
this Agreement, and/or Diery's employment with Apple through Termination
Date, the parties will first attempt to resolve the dispute through
confidential mediation to be conducted in San Francisco by a member of the
firm of Gregoria, Haldeman & Piazza, Mediated Negotiations, 625 Market
Street, Suite 400, San Francisco, California 94105. If the parties'
dispute is not resolved through mediation, it will be resolved through
binding confidential arbitration to be conducted by the American
Arbitration Association in San Francisco, pursuant to its Commercial
Arbitration Rules, and judgment upon the award rendered by the
Arbitrator(s) may be entered by any court having jurisdiction of the
matter. The prevailing party in such arbitration shall be entitled to
recover from the losing party, not only the amount of any judgment awarded
in its favor, but also any and all costs and expenses, incurred in
arbitrating the dispute or in preparing for such arbitration.
b. In the event that a dispute arises concerning compliance
with this Agreement, either party will be entitled to obtain from a court
with jurisdiction over the parties preliminary and permanent injunctive
relief to enjoin or restrict the other party from such breach or to enjoin
or restrict a third party from inducing any such breach, and other
appropriate relief, including money damages. In seeking any such relief,
however, the moving party will retain the right to have any remaining
portion of the controversy resolved by binding confidential arbitration in
accordance with subparagraph (a) above.
By signing the below, the parties agree to the terms hereof, including
the Exhibits hereto, and agree that this document, and Exhibits A, B, C,
and D hereto, sets forth their entire agreement.
APPLE COMPUTER, INC.
By
Date Edward B. Stead
Vice President and General Counsel
Apple Computer, Inc.
I have read, understand, and agree to the foregoing:
Date Ian Diery
APPROVED AS TO FORM:
By
Date Attorney for Ian Diery