Employment Agreement - Apple Japan Inc. and John Floisand
April 3, 1996
John Floisand
21223 Deepwell Court
Saratoga, CA 95070
Re: Apple Japan Employment
Dear John:
The following sets forth our agreement ("Letter Agreement")
regarding the terms and provisions of your employment as an officer and
employee of Apple Japan ("Apple Japan" or "Company"). This Letter
Agreement shall supersede any and all other agreements, oral and written,
which may presently exists between you and the Company with the following
exception; the June 9, 1995 Retention Agreement ("Retention Agreement")
between you and Apple. Upon a Change in Control Date, as defined in the
Retention Agreement, the Retention Agreement shall superceded this Letter
Agreement and shall govern exclusively.
1. Term of Employment Under the Agreement. The initial term of
your employment under this Agreement (the "Term") shall be effective as of
November 1, 1995 (the "Effective Date") and shall continue until the third
anniversary of the Effective Date. Thereafter, the parties agree to
renegotiate the terms and provisions of your employment with the Company.
A milestone under during the first year of the Term is that you hire the
President of Apple Japan. Once hired, another milestone is that you will
work with and mentor the new President of Apple Japan for one (1) year
following his hire in order to facilitate his new status.
2. Employment. You will be Chairman of the Apple Japan Board of
Directors and Chief Executive Officer of Apple Japan (grade 98) and your
duties and responsibilities to the Company shall be consistent in all
respects with such positions. The Company will take all steps reasonably
necessary to assure that you are elected or
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appointed to the Board. You shall prorate your business time, attention,
skills and efforts to the business and affairs of the Company and Apple
Computer, Inc., as provided for in your employment Letter Agreement with
Apple Computer, Inc., other than de minimis amounts of time devoted by you
to the management of your personal finances or to engaging in charitable or
community services.
3. Compensation.
(a) Base Salary. As compensation to you for all services
rendered to the Company, the Company will pay you a base salary at the rate
of not less than two hundred thousand dollars ($200,000) per annum as of
the Effective Date. This will be paid in United States dollars and in
monthly increments of $16,666.67. The amount of your base salary shall be
reviewed annually by the Company and shall be increased to reflect market
compensation of similarly situated executive officers as determined by the
Company. Any increase in your base salary shall be effective as of each
anniversary of the Effective Date and shall be treated as your rate of base
salary for all purposes under this Letter Agreement. Your base salary will
be paid to you in accordance with the Company's regular payroll practices
applicable to its executive employees.
(b) Benefits. You shall be eligible to participate in all
employee benefit plans and arrangements that the Company provides to its
executive employees in accordance with the terms of such plans and
arrangements, which shall be no less favorable to you, in the aggregate,
than the terms and provisions available to other executive employees of the
Company.
(c) Bonus. You shall be eligible to receive an annual bonus as
determined by the Board based on the overall corporate results of the
Company.
4. Termination.
Subject to the conditions of this paragraph, Apple shall
designate you for participation in the Apple Computer, Inc. Executive
Severance Plan upon the termination of your employment during the term or
thereafter provided that (1) you have not obtained or been offered another
position with the Company or its affiliates, or (2) the termination of your
employment was not the result of your voluntary resignation, or (3) the
decision to terminate your employment was not for "Business
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Reasons". "Business Reasons" shall mean that you are terminated for any of
the following reasons: (i) engaging in unfair or unlawful competition with
the Company; or (ii) inducing any customer of the Company to breach any
contract with the Company; or (iii) making any unauthorized disclosure of
or otherwise misusing any of the secrets or confidential information of the
Company; or (iv) committing any act of embezzlement, fraud or material
theft with respect to any Company property; or (v) violating any Company
policy or guideline or the terms of this Letter Agreement; or (vi) causing
material loss, damage or injury to or otherwise endangered the property,
reputation or employees of the Company; or (vii) engaging in malfeasance,
negligence or misconduct, or failing to perform reasonable duties and
responsibilities consistent with your duties and responsibilities to the
Company.
5. Automobiles. The Company shall provide you with an annual
automobile allowance of forty thousand dollars ($40,000) or, at the
Company's election, lease a vehicle for you of similar cost under the
Company's name. All maintenance, fuel, insurance and other miscellaneous
costs for this vehicle will be paid by the Company. In the event your wife
joins you in Japan, the Company will provide you with an annual automobile
allowance of twenty thousand dollars ($20,000) for a second vehicle for her
use. All maintenance, fuel, insurance and other miscellaneous costs for
this vehicle will be your responsibility.
In addition, the Company will reimburse you for the reasonable
costs of a taxi or hired car when you are required to attend business
functions and it is impractical for you to drive yourself.
6. Cost of Living. The Company will provide you with a cost of
living adjustment in accordance with the Company's Policy.
7. Membership Fees. The Company will pay the reasonable costs
of business memberships which you will need in order to perform your duties
for Apple Japan including membership in the Tokyo American Club. You will
be responsible for expenses related to your use of the Tokyo American Club
facilities.
8. Accountant Fees. The Company will pay the reasonable costs
of accounting services as provided in Apple's Expatriate Policy to handle
appropriate and covered financial matters.
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9. Notice. For the purpose of this Letter Agreement, notices
and all other communications provided for in this Letter Agreement shall be
in writing and shall be deemed to have been duly given when delivered or
mailed by registered mail, return receipt requested, postage prepaid,
addressed to Apple Japan, 1-14-1 Sendagaya, Shibuya-ku, Tokyo, 151 Japan,
with a copy sent in the same manner to Apple Computer, Inc., 1 Infinite
Loop, MS 75-8A, Cupertino, California 95014, Attn.: General Counsel, or to
such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
10. Miscellaneous.
(a) Amendments, Waivers, Etc. No provision of this Letter
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing. No waiver by either
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Letter Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not expressly set forth in this Letter
Agreement and this Letter Agreement shall supersede all prior agreements,
negotiations, correspondence, undertakings and communications of the
parties, oral or written, with respect to the subject matter hereof with
the exception that this Letter Agreement shall not supersede the Retention
Agreement.
(b) Validity. The invalidity or unenforceability of any
provision of this Letter Agreement shall not affect the validity or
enforceability of any other provision of this Letter Agreement, which shall
remain in full force and effect.
(c) Counterparts. This Letter Agreement may be executed in
several counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same instrument.
(d) Equalization. Apple will provide you with tax equalization
benefits in accordance with Apple's Expatriate Policy.
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(e) Source of Payments. All payments provided under this Letter
Agreement, other than payments made pursuant to a plan which provides
otherwise, shall be paid in cash from the general funds of the Company, and
no special or separate fund shall be established, and no other segregation
of assets made, to assure payment. You will have no right, title or
interest whatsoever in or to any investments which the Company may make to
aid it in meeting its obligations hereunder. To the extent that any person
acquires a right to receive payments from the Company hereunder, such right
shall be no greater than the right of an unsecured creditor of the Company.
(f) Headings. The headings contained in this Letter Agreement
are intended solely for convenience of reference and shall not affect the
rights of the parties to this Letter Agreement.
(g) Governing Law. The validity, interpretation, construction,
and performance of this Letter Agreement shall be governed by the laws of
the State of California without regard to its choice of law principles. The
parties agree that, except as expressly provided for to the contrary, venue
for any dispute shall be Santa Clara County, California.
(h) Remedies in Event of Future Dispute. In the event of any
future dispute, controversy or claim between the parties arising from or
relating to this Letter Agreement, its breach, any matter addressed by this
Letter Agreement, 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 Model Employment
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.
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* * * *
If this letter sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this
letter which will then constitute our agreement on this subject.
Sincerely,
APPLE JAPAN, INC.
By _/s/ M. Tashiro___
Masazumi Tashiro
Director
Agreed to as of this ___ day of April, 1996.
_______________________________
John Floisand