Separation Agreement - Apple Computer Inc. and Daniel Eilers
Separation Agreement
In consideration of the mutual agreements set forth below, Daniel
Eilers ("Eilers") 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 Eilers has been
employed.
2. Resignation from Office and Rescission of Retention Agreement.
Employee shall resign from his position as Senior Vice President, World
Wide Marketing & Customer Solutions of Apple, effective as of December 1,
1995. Eilers hereby resigns from all other positions he holds on behalf of
Apple, its subsidiaries and affiliates effective as of December 1, 1995
(except as an employee), which positions are set forth at Exhibit A hereto.
Eilers agrees to sign all appropriate and mutually agreeable documentation
prepared by Apple to facilitate these resignations.
Eilers and Apple agree that in exchange for the terms and conditions
of this Agreement, the June 9, 1995 Retention Agreement between Eilers and
Apple, a copy of which is attached hereto as Exhibit B, is hereby
rescinded and that neither party has any further rights or obligations
under the Retention Agreement.
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3. Employment Status/Termination. Subject to paragraph 11 below,
from the date of this Agreement through February 1, 1996 ("Termination
Date") or such earlier date as a result of an event under paragraph 11,
Eilers will continue to devote his best efforts to Apple and will remain an
employee of and fiduciary to Apple reporting to Edward B. Stead. On and
after December 1, 1995, Eilers will not be required to perform any duties
for or on behalf of Apple. Until Termination Date, Eilers shall continue
to receive his regular salary and receive full employee benefits. Apple
will designate Eilers as a participant in Apple's Executive Severance Plan
("Plan"), on or about December 1, 1995, and Eilers will become eligible to
receive the appropriate compensation and benefits under that Plan valued as
of February 1, 1996.
4. Compensation and Benefits Upon Termination. Subject to paragraph
11 below, at or before Termination Date, Apple will pay the following:
a. Severance Payments. Under this Agreement and the Plan,
Eilers is eligible to receive a lump sum severance payment based on 13
years and 6 months of employment and a proration of his FY '96
Senior/Executive Incentive Bonus Plan ("Bonus Plan"), less deductions, and
a payout of his accrued vacation. Subject to paragraph 11 below, Apple
will pay Eilers five hundred fifteen thousand, seven hundred fifty dollars
($515,750), less payroll tax deductions, and an additional amount equal to
Eilers' accrued vacation through Termination Date, less payroll tax
deductions, in full satisfaction of all Apple's obligations under the Plan,
Bonus Plan and otherwise. Eilers shall be paid on or before Termination
Date and such payment constitutes full compensation under the Plan , Bonus
Plan and otherwise. There shall be no other payments to Eilers except as
stated in this paragraph 4(a) and in paragraph 3 above and the amount of
such payments shall at all times remain subject to paragraph 11.
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b. Stock Options. Apple's Board of Directors (the "Board")
previously granted Eilers 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 Eilers with respect to such grants, and the terms of the 1981 and 1990
Stock Option Plans and the ELTSOP administered by the Board.
c. Receipt of Documentation. Eilers acknowledges that he has
previously received from Apple copies of pertinent portions of Apple's
Executive Severance Plan, Apple's Senior/ Executive Bonus Program, Apple's
1981 and 1990 Stock Option Plans, Apple's ELTSOP, Apple's 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. Eilers 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 Eilers's consent so long as
such action does not conflict with or reduce Eiler's rights under this
Agreement.
d. Outplacement. Apple will provide Eilers with the following
outplacement benefits:
(1) Until August 1, 1996, or such earlier date as the parties
may agree, Apple will maintain as active Eilers' phone number and phone
line at (408) 974-2303 so that Eilers may continue to receive calls with
voice mail box access. Eilers agrees that his voice mail greeting will
refer callers of a personal nature to another number and will instruct
callers with Apple business to either leave a message or to another Apple
phone number. Eilers agrees to forward to Edward B. Stead any calls for
and on behalf of Apple. Apple will maintain Eilers' name and number in
Apple's directory so that Apple operators will continue to be able to
transfer calls to Dan Eilers' phone number and phone line.
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(2) Until August 1, 1996, Apple will forward any personal mail
directed to Eilers but received by Apple to Eilers' home address.
(3) Apple will provide Eilers with a non-employee AppleLink
account, at Apple's expense, through August 1, 1996.
(4) Apple will provide Eilers with an outplacement office
through December 1, 1996, or such earlier date as the parties may agree to,
otherwise in accordance with the outplacement benefits under the Plan.
e. No Other Benefits. Eilers 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 Termination Date 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 Eilers 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. Eilers may also make such disclosure to his immediate
family members, his tax advisor and/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 Eilers. Apple
and Eilers 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 Eilers's employment termination.
6. Trade Secrets, Proprietary and Confidential Information. Eilers
agrees to comply with Apple's "Proprietary Rights and Information
Agreement" which is attached hereto as Exhibit C to this Agreement.
In addition, Eilers agrees to continue to abide by the principles and
guidelines in Apple's Global Ethics brochure, the terms of which are
incorporated herein to the extent it applies to employees through
Termination Date and to former employees thereafter.
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On or before Termination Date, Eilers agrees to promptly return to
Apple or its records retention designee all Apple proprietary and
confidential information, including but not limited to all business plans,
financial records, inventions, discoveries, improvements, computer
programs, designs, documentation, notes, plans, drawings and copies thereof
to Apple. Apple hereby gives to Eilers the equipment identified at Exhibit
D and all manuals and documents which came with such equipment.
Eilers and Apple agree that this section regarding Trade Secrets,
Proprietary and Confidential Information shall survive the termination of
this Agreement.
7. Fiduciary Duties/Non-Solicitation. Eilers further recognizes
that Apple's work force constitutes an important and vital aspect of its
business. Eilers agrees that during his employment with Apple he shall
not solicit, or assist others employed by Apple to become employed by any
firm, company or other business enterprise without the consent of and
direction from Apple. Through February 1, 1997, Eilers agrees that he
shall not solicit, or assist others employed by Apple to become employed by
any firm, company or other business enterprise. Eilers further represents
that he has no time prior to the date this Agreement is signed solicited or
encouraged any employee to leave Apple without the consent of and direction
from Apple. Nothing in this Agreement will prevent Eilers from providing
favorable recommendations or favorable references on behalf of persons who
previously worked with Eilers.
Eilers and Apple also agree, that upon a breach or violation or
threatened breach or violation of any confidentiality, trade secrets, or
non-solicitation agreement by Eilers 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. Eilers 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 Eilers by Apple's By-Laws and/or by the
Indemnification Agreement dated May 19, 1992 shall continue in full force
and effect in accordance with their terms, following the date of this
Agreement. A copy of Eilers's Indemnification Agreement is attached hereto
as Exhibit E 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 Eilers to
the benefits listed in paragraphs 3 and 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, D & E to
this Agreement, set forth the entire Agreement and understanding between
Eilers and Apple, and supersede any other negotiations, agreements,
understandings, oral agreements, representations or past or future
practices, whether written or oral, by Apple, except as otherwise provided
herein. 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) is incorporated
herein only insofar as it does not contradict this Agreement. If any
inconsistencies exist between this Agreement and any such plan, policy or
program, 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, those stock plans shall control.
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Nothing in any such plan, policy, or this Agreement shall change the
At Will nature of Eilers's employment under this Agreement by which either
party can terminate Eilers's employment without regard to cause. Eilers
understands and agrees that Apple is obligated to make the payments
outlined in paragraph 3 and 4 of this Agreement in the event Eilers's
employment terminates before Termination Date for any reason other than:
a. by Apple for "Business Reasons" as defined below;
b. by Eilers for any reason, except if Eilers's employment is
terminated for any material breach by Apple of this Agreement. In this
event, Eilers 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 his prior to the actual, accelerated
Termination Date;
For purposes of this Agreement only, "Business Reasons" shall mean that
Eilers is terminated for any of the following reasons:
(i) engaging in unfair or unlawful competition with Apple; or
(ii) inducing any customer of Apple to breach any contract with
Apple; or
(iii)making any unauthorized disclosure of or otherwise
misusing any of the secrets or confidential information of Apple; or
(iv) committing any act of embezzlement, fraud or material theft
with respect to any Apple property; or
(v) violating any Apple policy or guideline or the terms of this
Agreement; or
(vi)causing material loss, damage or injury to or otherwise
endangered the property, reputation or employees of Apple; or
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(vii)engaging in malfeasance, negligence or misconduct, or
failing to perform reasonable duties and responsibilities consistent with your
duties and responsibilities to Apple; or
(viii)failure 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. Eilers understands that he has the
right to have this Agreement reviewed by his lawyer and acknowledges that
Apple has encouraged his to consult with his lawyer so that he is fully
aware of his rights and obligations under this Agreement. Eilers
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 Eilers 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 paragraph 2, 5, 6, 7, 19 or 21 are held to be invalid or unenforceable
in response to a motion, argument or other act by Eilers, then Apple, at
its sole discretion, may rescind the Agreement and recover all
consideration paid to Eilers under the Agreement.
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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 Eilers : 1224 Miraflores Way
Los Altos, CA 94024
or in each case to such other address as Eilers 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. Eilers 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 and inure to the benefit of Eilers, his
heirs, executors, administrators, or other legal representatives and their
legal assigns.
17. Damage Limitation. At Termination Date, Eilers 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.
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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.
19. Release. Eilers 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
Eilers'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. Eilers 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 Eilers'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. Eilers 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
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Benefit Protection Act ("OWBPA"). Eilers and Apple agree that part of the
consideration payable to Eilers under this Agreement is consideration that
Eilers would not otherwise be entitled to and is in consideration for
Eilers's release of claims under the ADEA as amended by the OWBPA.
Eilers 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. Eilers states that he knowingly and voluntarily enters
into this Agreement. Eilers acknowledges that this Agreement is written in
a manner calculated to be understood by him. Eilers further acknowledges
that this Agreement refers without limitation to rights under the Age
Discrimination in Employment Act. Eilers understands that by this
Agreement, he does not waive rights or claims that may arise after
Termination Date. Eilers 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, Eilers
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. Notwithstanding this provision, Eilers acknowledges that
he has been allowed up to forty five (45) days from the date that he
received this Agreement to accept its terms. Eilers acknowledges he has
consulted with an attorney about the Agreement. Eilers 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 Eilers and
immediately delivered to Apple's General Counsel.
Eilers 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 HIS MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
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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 Eilers, his
agents and attorneys from, and covenant not to sue Eilers, 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.
20. Cooperation. Eilers agrees that he will make himself available
at reasonable times and intervals 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. Eilers 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 Eilers 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 Eilers'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 California
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Employment Dispute Resolution 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.
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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, D
& E hereto, sets forth their entire agreement, except as otherwise
expressly provided herein.
APPLE COMPUTER, INC.
Date 1/18/96 By _/s/ Edward B. Stead_____________
Edward B. Stead
Vice President and General Counsel
Apple Computer, Inc.
I have read, understand, and agree to the foregoing:
Date 12/11/95 By _/s/ Daniel Eilers ________________
Daniel Eilers
APPROVED AS TO FORM:
Date 12/12/95 By _/s/ Cynthia Carlson_____________
Cynthia Carlson, Esq.
Gray, Cary, Ware & Freidenrich
Attorneys for Daniel Eilers