EXHIBIT 10.A.40
August 19, 1996
Mr. Gerald F. Forsyth
120 Teresita Way
Los Gatos, CA 95032
Employment Agreement
Dear Fred:
The following sets forth our agreement regarding the
terms and provisions of your employment as an officer and employee of
Apple Computer, Inc. (the" Company"). Capitalized words which are not
otherwise defined herein shall have the meanings assigned to such words in
Section 5 of this Agreement.
1. Commencement of Employment. Your
employment under this Agreement commenced on July 1, 1996 (the
"Effective Date").
2. Position. You shall be employed as Senior
Vice President, General Manager of the Macintosh Products Group and
shall report directly to the Chief Operating Officer of the Company, and
your duties and responsibilities to the Company shall be consistent in all
respects with such position. You shall devote substantially all of your
business time, attention, skills and efforts exclusively to the business and
affairs of the Company, 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. Your principal place of employment
shall be the executive offices of the Company in Cupertino, California,
although you understand and agree that you will be required to travel from
time to time for business purposes.
3. Compensation.
(a) Base Salary. As compensation to you for all
services rendered to the Company and its subsidiaries, the Company will
pay you a base salary at the rate of not less than four hundred forty
thousand dollars ($440,000) per annum as of the Effective Date. Your base
salary will be paid to you in accordance with the Company's regular
payroll practices applicable to its executive employees.
(b) Bonus. You shall be eligible to participate in
the annual Senior Executive Bonus Plan (domestic) sponsored by the
Company or any successor plan thereto. Such bonus program shall afford
you the opportunity to earn an annual bonus for each fiscal year of the
Company during your employment. During the Company's Fiscal Year
1996 only, your target annual bonus will be three hundred thirty thousand
dollars ($330,000). The amount of your target annual bonus thereafter
shall be reviewed annually by the Company. Each annual bonus shall be
paid to you in accordance with the terms and conditions of the bonus plan
then in effect.
(c) Stock Options. In consideration of this
Agreement, we will recommend to the Apple Computer, Inc. Board of
Directors a stock option grant of 150,000 shares of Apple Computer, Inc.
common stock. Each grant vests over a three year period at 33%
increments beginning one year from the grant date and shall at all times be
subject to the terms and conditions of the Apple Computer, Inc. 1990
Stock Option Plan, as amended, and any successor plans thereto ("1990
Stock Plan").
(d) 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.
4. Termination.
(a) Termination for Cause. If your employment is
terminated by the Company for Cause, the Company shall pay you the full
amount of the accrued but unpaid base salary you have earned through the
date of your termination, plus a cash payment (calculated on the basis of
your base salary then in effect) for all unused accrued vacation. In addition,
you shall be entitled to benefits under the employee plans and arrangements
described in Section 3(d) above in accordance with terms and provisions of
such plans and arrangements.
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(b) Termination Other than for Cause. During the
three (3) year period following the Effective Date only, if your
employment is terminated by the Company for reasons other than for
Cause, the Company shall pay you the full amount of the accrued but
unpaid base salary you have earned through the date of your termination,
plus a cash payment (calculated on the basis of your base salary then in
effect) for all unused accrued vacation. In addition, the Company shall pay
you a lump sum amount and benefits as follows:
Lump Sum Payout
Termination Date Amount
During 3-year period 100% of annual base salary
following Effective Date ($440,000)
Additional Benefits
Continued Company-paid medical and dental insurance
benefits for a maximum of 12 months after employment
termination date.
Outplacement assistance by a vendor of the Company's
choosing and/or administrative assistance, the costs of which
shall not exceed $15,000.
The computer and printer in your office.
There shall be no other payments or benefits on termination.
5. Definitions. For purposes of this Agreement,
the following capitalized words shall have the meanings set forth below:
"Cause" shall mean a termination of your employment
which is a result of (i) your felony conviction, (ii) your willful disclosure
of material trade secrets or other material confidential information related to
the business of the Company and its subsidiaries or (iii) your willful and
continued failure substantially to perform your duties with the Company
(other than any such failure resulting from your incapacity due to physical
or mental illness or any such actual or anticipated failure resulting from a
resignation by you) after a written demand for substantial performance is
delivered to you by the Company's Chief Administrative Officer, which
demand specifically identifies the manner in which the Company believes
that you have not substantially performed your duties, and which
performance is not substantially corrected by you within 10 days of receipt
of such demand. For purposes of the previous sentence, no act or failure
to act on your part shall be deemed "willful" unless done, or omitted to be
done, by you not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
6. Notice. For the purpose of this Agreement,
notices and all other communications provided for in this Agreement shall
be in writing and shall be deemed to have been duly given when delivered
or mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the Apple Computer, Inc., 1 Infinite Loop, MS 75-
8A, Cupertino, California 95014, Attn.: George Scalise, Chief
Administrative Officer, with a copy to the General Counsel of the
Company, or to you at the address set forth on the first page of this
Agreement 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.
7. Miscellaneous.
(a) Amendments, Waivers, Retention Agreement,
Etc. No provision of this 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 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
Agreement and this Agreement shall supersede all prior agreements,
negotiations, correspondence, undertakings and communications of the
parties, oral or written, with respect to the subject matter hereof; provided,
however, that the Retention Agreement between you and the Company
shall supersede this Agreement in its entirety upon the Change in Control
Date as specified in the Retention Agreement.
(b) Validity. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
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(c) Counterparts. This 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) Withholding. Amounts paid to you hereunder
shall be subject to all applicable federal, state and local withholding taxes.
(e) Source of Payments. All payments provided
under this 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
Agreement are intended solely for convenience of reference and shall not
affect the rights of the parties to this Agreement.
(g) Governing Law. The validity, interpretation,
construction, and performance of this Agreement shall be governed by the
laws of the State of California applicable to contracts entered into and
performed in such State.
* * * *
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 COMPUTER, INC.
By__________________________
Marco Landi
Executive Vice President and
Chief Operating Officer
Agreed to as of this ____ day of August, 1996.
_______________________________
Gerald F. Forsyth
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