Apple
APPLE COMPUTER INC (Form: S-8, Received: 06/24/2003 16:34:08)

 

As filed with the Securities and Exchange Commission on June 24, 2003

Registration No. 333-___________

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

Form S-8

 

REGISTRATION STATEMENT

under

THE SECURITIES ACT OF 1933

 

APPLE COMPUTER, INC.

(Exact name of Registrant as specified in its charter)

 

 

CALIFORNIA

 

94-2404110

(State of other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

One Infinite Loop

Cupertino, California  95014

(Address, including zip code, of principal executive offices)

 

Employee Stock Purchase Plan

(Full title of the plan)

 

Nancy R. Heinen

General Counsel

Apple Computer, Inc.

One Infinite Loop, M/S 301-4CL

Cupertino, California 95014

(408) 996-1010

(Name, address, including zip code, and telephone number,

 including area code, of agent for service)

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

Title of securities to be registered

 

Amount to be

registered

 

Proposed

maximum

offering price

per share

 

Proposed

maximum

aggregate

offering price

 

Amount of

registration fee

Common Stock, no par value, to be issued under the Employee Stock Purchase Plan

 

4,000,000 shares(1)

 

$19.12(2 )

 

$76,480,000(2 )

 

$6,187.23(3 )

 

 

 

 

 

 

 

 

 


(1)           Plus such indeterminable number of additional shares as may be issued as a result of an adjustment in the shares in the event of a stock split, stock dividend or similar capital adjustment, as required by the Employee Stock Purchase Plan.

 

(2)           Estimated in accordance with Rule 457(h) solely for the purpose of calculating the filing fee on the basis of $19.12 per share, which represents the average of the high and low prices of the Common Stock reported on the NASDAQ National Market for June 18, 2003.

 

(3)           Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee.  Amount of the Registration Fee was calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended, and was determined by multiplying the aggregate offering amount by 0.00008090.

 

 

 

 

 



 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.                    Incorporation of Documents by Reference.

There are hereby incorporated by reference into this Registration Statement the following documents and information heretofore filed with the Securities and Exchange Commission (the “Commission”):

(a)                                               The Registrant’s annual report on Form 10-K for the fiscal year ended September 28, 2002;

(b)                                              The Registrant’s Quarterly Report on Form 10-Q for the quarter ended December 28, 2002;

(c)                                               The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 29, 2003;

(d)                                              All other reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), since September 28, 2002;

(e)                                               The description of the Registrant’s common stock contained in the Registrant’s Registration Statements on Form 8-A filed with the Commission on October 30, 1981 registering such shares pursuant to Section 12 of the Exchange Act, including any amendment or report updating such description.

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, also shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents.

Item 4.                    Description of Securities.

Not applicable.

Item 5.                    Interests of Named Experts and Counsel.

Item 601(b)(5) of Regulation S-K, promulgated under the Securities Act, requires registrants seeking to register original issuance securities issued under an employee benefit plan to file as an exhibit to its registration statement on Form S-8 an opinion of counsel as to the legality of the securities being registered.  Nancy R. Heinen, General Counsel of the Registrant, will pass upon the validity of the shares of the Registrant’s Common Stock registered pursuant to this Registration Statement on Form S-8.

 



 

Item 6.                    Indemnification of Directors and Officers.

Section 317 of the California General Corporations Law (the “CGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers who are parties or are threatened to be made parties to any proceeding (with certain exceptions) by reason of the fact that the person is or was an agent of the corporation, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner the person  reasonably believed to be in the best interests of the corporation, and in the case of a criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful.

Section 204 of the CGCL provides that a corporation’s articles of incorporation may not limit the liability of directors (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (iii) for any transaction from which a director derived an improper personal benefit, (iv) for acts or omissions that show a reckless disregard for the director’s duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director’s duties, of a risk of a serious injury to the corporation or its shareholders, (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation or its shareholders, (vi) under Section 310 of the CGCL (concerning transactions between corporations and directors or corporations having interrelated directors) or (vii) under Section 316 of the CGCL (concerning directors’ liability for distributions, loans, and guarantees).

Section 204 further provides that a corporation’s articles of incorporation may not limit the liability of directors for any act or omission occurring prior to the date when the provision became effective or any act or omission as an officer, notwithstanding that the officer is also a director or that his or her actions, if negligent or improper, have been ratified by the directors.  Further, Section 317 has no effect on claims arising under federal or state securities laws and does not affect the availability of injunctions and other equitable remedies available to a corporation’s shareholders for any violation of a director’s fiduciary duty to the corporation or its shareholders.

In accordance with Section 317, the Restated Articles of Incorporation, as amended (the “Articles”), of Apple Computer, Inc. (the “Company”) limit the liability of a director to the Company or its shareholders for monetary damages to the fullest extent permissible under California law.  The Articles further authorize the Company to provide indemnification to its agents (including officers and directors), subject to the limitations set forth above.  The Articles and the Company’s By-Laws (the “By-Laws”) further provide for indemnification of corporate agents to the maximum extent permitted by the CGCL.

Pursuant to the authority provided in the Articles and By-Laws, the Company has entered into indemnification agreements with each of its executive officers and directors, indemnifying them against certain potential liabilities that may arise as a result of their service to the Company, and providing for certain other protection.  The Company also maintains insurance policies which insure its officers and directors against certain liabilities.

The foregoing summaries are necessarily subject to the complete text of the statute, the Articles, the By-Laws and the agreements referred to above and are qualified in their entirety by reference thereto.

Item 7.                    Exemption from Registration Claimed.

Not applicable.

 



Item 8.                    Exhibits.

The following exhibits are filed as part of this Registration Statement:

 

Exhibit No.

 

Description

 

 

 

5.1

 

Opinion of counsel as to the legality of the securities being registered hereby.

10.A.6

 

Employee Stock Purchase Plan, as amended through April 24, 2003

23.1

 

Consent of counsel (included in Exhibit 5.1).

23.3

 

Consent of KPMG LLP.

24.1

 

Power of attorney (included on signature page of this Registration Statement).

 

Item 9.                    Undertakings.

(a)           The undersigned Registrant hereby undertakes:

(1)           To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; and

(2)           That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and

(3)           To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(b)           The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c)           Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act, and will be governed by the final adjudication of such issue.

 



 

SIGNATURES

Pursuant to the requirements of the Securities Act the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, County of Santa Clara, State of California, on the 23rd day of June 2003.

 

 

APPLE COMPUTER, INC.

 

 

 

 

 

By:

 

/s/  Fred D. Anderson

 

 

 

Fred D. Anderson

 

 

 

Executive Vice President and

 

 

 

Chief Financial Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Steven P. Jobs, Fred D. Anderson and Nancy R. Heinen, jointly and severally, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/  Steven P. Jobs

 

Chief Executive Officer and Director

 

June 23, 2003

Steven P. Jobs

 

(Principal  Executive Officer)

 

 

 

 

 

 

 

/s/ Fred D. Anderson

 

Executive Vice President and Chief Financial

 

June 23, 2003

Fred D. Anderson

 

Officer (Principal Financial Officer)

 

 

 

 

 

 

 

/s/  William V. Campbell

 

Director

 

June 23, 2003

William V. Campbell

 

 

 

 

 

 

 

 

 

/s/  Millard S. Drexler

 

Director

 

June 23, 2003

Millard S. Drexler

 

 

 

 

 

 

 

 

 

/s/  Albert Gore, Jr.

 

Director

 

June 23, 2003

Albert Gore, Jr.

 

 

 

 

 

 

 

 

 

/s/  Arthur D. Levinson

 

Director

 

June 23, 2003

Arthur D. Levinson

 

 

 

 

 

 

 

 

 

/s/  Jerome B. York

 

Director

 

June 23, 2003

Jerome B. York

 

 

 

 

 

 

 

 

 

 

 



 

EXHIBIT INDEX

 

 

 

Exhibit No.

 

Description

 

 

 

5.1

 

Opinion of counsel as to the legality of the securities being registered hereby.

10.A.6

 

Employee Stock Purchase Plan, as amended through April 24, 2003

23.1

 

Consent of counsel (included in Exhibit 5.1).

23.3

 

Consent of KPMG LLP.

24.1

 

Power of attorney (included on signature page of this Registration Statement).

 

 

 

 





Exhibit 5.1

 

 

June 23, 2003

 

 

Apple Computer, Inc.

1 Infinite Loop

Cupertino, California 95014

 

Re:

 

Registration Statement on Form S-8 for Additional Shares to be Issued under the

Employee Stock Purchase Plan

 

Ladies and Gentlemen:

 

I have examined the Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission on or about June 23, 2003 (the “Registration Statement”) in connection with the registration under the Securities Act of 1933, as amended, of 4,000,000 additional shares of Common Stock, no par value, (the “Shares”) of Apple Computer, Inc. (the “Company”), authorized for issuance under the Employee Stock Purchase Plan, as amended (the “ESPP”).  As counsel in connection with this transaction, I have examined the actions taken, and I am familiar with the actions proposed to be taken, in connection with the issuance and sale of the Shares pursuant to the ESPP.

 

It is my opinion that, when issued and paid for in the manner described in the ESPP, the Shares will be legally and validly issued, fully paid and nonassessable.

 

I consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of my name wherever appearing in the Registration Statement.

 

Very truly yours,

 

/s/  Nancy R. Heinen

 

 

Nancy R. Heinen

 

 

General Counsel

 

 

 

 

 

 

 





Exhibit 10.A.6

 

APPLE COMPUTER, INC.

EMPLOYEE STOCK PURCHASE PLAN

(as amended through 4/24/03)

 

 

                The following constitute the provisions of the Employee Stock Purchase Plan (herein called the “Plan”) of Apple Computer, Inc. (herein called the “Company”).

 

                1.             Purpose .                The purpose of the Plan is to provide employees of the Company and its subsidiaries with an opportunity to purchase Common Stock of the Company through payroll deductions.  It is the intention of the Company to have the Plan qualify as an “Employee Stock Purchase Plan” under Section 423 of the Internal Revenue Code of 1986.  The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.

 

                2.             Definitions .

 

                                (a)           “ Board ”  shall mean the Board of Directors of the Company.

 

                                (b)           “ Common Stock ”  shall mean the Common Stock, no par value, of the Company.

 

                                (c)           “ Company ”  shall mean Apple Computer, Inc., a California corporation.

 

                                (d)           “ Compensation ” shall mean all regular straight time earnings, payments for overtime, shift premium, incentive compensation, incentive payments, bonuses and commissions (except to the extent that the exclusion of any such items is specifically directed by the Board or its committee).

 

                                (e)           “ Designated Subsidiaries ” shall mean the Subsidiaries which have been designated by the Board from time to time in its sole discretion as eligible to participate in the Plan.

 

                                (f)            “ Employee ” shall mean:

 

(1) any person, including an officer, who is customarily employed for at least twenty (20) hours per week and more than five (5) months in a calendar year by the Company or one of its Designated Subsidiaries.

 

(2) Notwithstanding subsection (1), a different rule shall apply to an individual during any period (A) he or she receives compensation

 

 

 



 

which is not initially treated by the Company as “wages”: for payroll tax purposes, (i.e. payments to such individual are not initially subjected by the Company to income tax, FICA tax, or other withholdings applicable to wages), if (B) he or she is ultimately determined to have been a common law employee of the Company during the period, although initially reported as an independent contractor or treated as employed by a payroll agency for the period in question.  In that case, to the extent Section 423 requires such individual to be treated as retroactively eligible to have participated in the Plan, such individual shall be treated as an “Employee” during an offering period only to the extent that he or she satisfies the criteria set forth in the next sentence as of the start of the offering period.  The two criteria are that: (A) the individual must be employed by the Company at least two years and (B) the individual is not a “highly compensated employee” within the meaning of Section 414(q) of the Internal Revenue Code of 1986.  For the purpose of computing years of service, all service prior to a break in service shall be ignored to the extent permitted by Section 423.  For the purpose of determining an individual’s status as a “highly compensated employee”, the rules in the Company’s Savings and Investment Plan shall apply.

 

                                (g)           “ Plan ”  shall mean this Employee Stock Purchase Plan.

 

                                (h)           “ Section 16 Person ” shall mean any person participating in the Plan who has been designated by the Board of Directors as having authority to carry out policy-making functions such that the person is subject to the reporting and short-swing profit regulations of Section 16 of the Securities Exchange Act of 1934.

 

                                (i)            “ Subsidiary ” shall mean a corporation, domestic or foreign, of which not less than 50% of the voting shares are held by the Company or a Subsidiary, whether or not such corporation now exists or is hereafter organized or acquired by the Company or a Subsidiary.

 

                                (j)            “ 1934 Act Section 16 ” shall mean Section 16 of the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

 

                3.             Eligibility .

 

                                (a)           Any Employee as defined in Section 2 who shall be employed by the Company or one of its Designated Subsidiaries on the date his or her participation in the Plan is effective shall be eligible to participate in the Plan, subject to the limitations imposed by Section 423(b) of the Internal Revenue Code of 1986, as amended.

 

                                (b)           Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) if, immediately after the grant, such Employee would own shares and/or hold outstanding options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of shares of the Company or of any Subsidiary of the Company, or (ii) which permits his or her rights to purchase shares under all employee stock purchase plans of

 

 



 

the Company and its Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) of the fair market value of the shares (determined at the time such option is granted) for each calendar year in which such stock option is outstanding at any time.

 

                4.             Offering Dates .  The Plan shall be implemented by one offering during each six-month period of the Plan, commencing on or about January 1, 1981 and continuing thereafter until terminated in accordance with Section 19 hereof.  The Board of Directors of the Company shall have the power to change the duration of offering periods with respect to future offerings without shareholder approval if such change is announced at least fifteen (15) days prior to the scheduled beginning of the first offering period to be affected.

 

                5.             Participation .

 

                                (a)           An eligible Employee may become a participant in the Plan by completing a subscription agreement authorizing payroll deductions on the form provided by the Company and filing it with the Company’s payroll office prior to the applicable offering date.  Once filed, the subscription agreement shall remain effective for all subsequent offering periods until the participant withdraws from the Plan as provided in Section 10 hereof or files another subscription agreement.

 

                                (b)           Payroll deductions for a participant shall commence on the first payroll following the commencement offering date and shall continue at the same rate until such time as the participant withdraws from the Plan as provided in Section 10 hereof or another subscription agreement is filed which changes the rate of payroll deductions.

 

                6.             Payroll Deductions .

 

                                (a)           At the time a participant files his or her subscription agreement, he or she shall elect to have payroll deductions made on each payday during subsequent offering periods at a rate not exceeding ten percent (10%) of the Compensation which he or she received on such payday, and the aggregate of such payroll deductions during any offering period shall not exceed ten percent (10%) of his or her aggregate Compensation during said offering period.

 

                                (b)           All payroll deductions made by a participant shall be credited to his or her account under the Plan.  A participant may not make any additional payments into such account.

 

                                (c)           A participant may discontinue his or her participation in the Plan as provided in Section 10, or may lower, but not increase, the rate of his or her payroll deductions (within the limitations set forth in subsection (a) above) during an offering period by completing and filing with the Company a new authorization for payroll deductions.  The change in rate shall be effective within fifteen (15) days following the

 

 



Company’s receipt of the new authorization.

 

                                (d)           A participant may increase his or her rate of payroll deductions (within the limitations set forth in subsection (a) above) to be effective for the next offering period by completing and filing with the Company a new authorization for payroll deductions at least fifteen (15) days before the beginning of said offering period.

 

                7.             Grant of Option .

 

                                (a)           At the beginning of each six-month offering period, each eligible Employee participating in the Plan shall be granted an option to purchase (at the per share option price) up to a number of shares of the Company’s Common Stock determined by dividing the Employee’s accumulated payroll deductions (not to exceed an amount equal to ten percent (10%) of his or her Compensation during the applicable offering period) by the lower of (i) eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the commencement of said offering period, or (ii) eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the expiration of the offering period, subject to the limitations set forth in Sections 3(b) and 12 hereof, and subject to the following limitation:  The number of shares of the Company’s Common Stock subject to any option granted to an Employee pursuant to this Plan shall not exceed two hundred percent (200%) of the number of shares of the Company’s Common Stock determined by dividing an amount equal to ten percent (10%) of the Employee’s semi-annual Compensation as of the date of the commencement of the applicable offering period by eighty-five percent (85%) of the fair market value of a share of the Company’s Common Stock on the date of the commencement of said offering period.  Fair market value of a share of the Company’s Common Stock shall be determined as provided in Section 7(b) herein.

 

                                (b)           The option price per share of such shares shall be the lower of:  (i) 85% of the fair market value of a share of the Common Stock of the Company at the commencement of the six-month offering period; or (ii) 85% of the fair market value of a share of the Common Stock of the Company at the time the option is exercised at the termination of the six-month offering period.  The fair market value of the Company’s Common Stock on a given date shall be the mean of the reported bid and asked prices for that date, or if the Common Stock is listed on an exchange or quoted on the Nasdaq National Market, the closing sale price on such exchange or quotation system for that date.

 

                8.             Exercise of Option .  Unless a participant withdraws from the Plan as provided in Section 10, his or her option for the purchase of shares will be exercised automatically at the end of the offering period, and the maximum number of full shares subject to option will be purchased for him or her at the applicable option price with the accumulated payroll deductions in his or her account.  During his or her lifetime, a participant’s option to purchase shares hereunder is exercisable only by him or her.

 

 



 

                9.             Delivery; Roll-Over of Fractional Share Interests .

 

                                As promptly as practicable after the termination of each offering, the Company shall arrange for the delivery to each participant, as appropriate, of a certificate representing the number of full shares purchased upon exercise of his or her option.  No fractional shares shall be issued. Any cash remaining to the credit of a participant’s account under the Plan after a purchase by him or her of shares at the termination of each offering period which is insufficient to purchase a full share of Common Stock of the Company subject to option shall remain in such participant’s account and shall be applied to the next succeeding offering period unless the participant has withdrawn as to future offering periods, in which case such cash shall be returned to said participant. Any cash attributable to shares in excess of the number of shares subject to option to the participant (as determined in accordance with Section 7(a) hereof) shall be returned to the participant.

 

                10.           Withdrawal; Termination of Employment .

 

                                (a)           A participant may withdraw all but not less than all the payroll deductions credited to his or her account under the Plan at any time prior to the end of the offering period by giving written notice to the Company.  All of the participant’s payroll deductions credited to his or her account will be paid to him or her promptly after receipt of his or her notice of withdrawal and his or her option for the current period will be automatically terminated, and no further payroll deductions for the purchase of shares will be made during the offering period.

 

                                (b)           Upon termination of the participant’s employment prior to the end of the offering period for any reason, including retirement or death, the payroll deductions credited to his or her account will be returned to him or her or, in the case of his or her death, to the person or persons entitled thereto under Section 14, and his or her option will be automatically terminated.

 

                                (c)           In the event an Employee fails to remain in the continuous employ of the Company or one of its Designated Subsidiaries for at least twenty (20) hours per week during the offering period in which the employee is a participant, he or she will be deemed to have elected to withdraw from the Plan and the payroll deductions credited to his or her account will be returned to him or her and his or her option terminated.

 

                                (d)           Except as provided in Section 3(a) with respect to Section 16 Persons, a participant’s withdrawal from an offering will not have any effect upon his or her eligibility to participate in a succeeding offering or in any similar plan which may hereafter be adopted by the Company.  However, a new subscription agreement will have to be filed in such case.

 

                11.           No Interest .  No interest shall accrue on the payroll deductions of a participant in the Plan.

 

 



 

                12.           Stock .

 

                                (a)           The maximum number of shares of the Company’s Common Stock which shall be made available for sale under the Plan shall be thirty-four million (34,000,000) shares, subject to adjustment upon changes in capitalization of the Company as provided in Section 18. The shares to be sold to participants under the Plan may, at the election of the Company, be either treasury shares or shares authorized but unissued.  The maximum number of shares of the Company’s Common Stock available for sale in any offering period will be established by the committee of the members of the Board administering the Plan from time to time, prior to an offering period for all options to be granted during such offering period, subject to adjustment upon changes in capitalization of the Company as provided in Section 18.  If at the termination of any offering period the total number of shares which would otherwise be subject to options granted pursuant to Section 7(a) hereof exceeds the number of shares then available under the Plan (after deduction of all shares for which options have been exercised or are then outstanding), the Company shall promptly notify the participants, and shall, in its sole discretion (i) make a pro rata allocation of the shares remaining available for option grant in as uniform a manner as shall be practicable and as it shall determine to be equitable, (ii) terminate the offering period without issuance of any shares or (iii) obtain shareholder approval of an increase in the number of shares authorized under the Plan such that all options could be exercised in full.  The Company may delay determining which of (i), (ii) or (iii) above it shall decide to effect, and may accordingly delay issuances of any shares under the Plan, for such time as is necessary to attempt to obtain shareholder approval of any increase in shares authorized under the Plan.  The Company shall promptly notify participants of its determination to effect (i), (ii) or (iii) above upon making such decision.  A participant may withdraw all but not less than all the payroll deductions credited to his or her account under the Plan at any time prior to such notification from the Company.  In the event the Company determines to effect (i) or (ii) above, it shall promptly upon such determination return to each participant all payroll deductions not applied towards the purchase of shares.”

 

 

                                (b)           The participant will have no interest or voting right in shares covered by his or her option until such option has been exercised.

 

                                (c)           Shares to be delivered to a participant under the Plan will be registered in the name of the participant or in the name of the participant and the spouse of the participant.

 

                13.           Administration .  The Plan shall be administered by a committee of members of the Board of Directors, which committee shall be appointed by the Board.  The administration, interpretation or application of the Plan by such committee shall be final, conclusive and binding upon all participants.  Members of the committee shall not be permitted to participate in the Plan.

 

 



 

                14.           Designation of Beneficiary .

 

                                (a)           A participant may indicate in his or her subscription agreement, or may file a written designation of beneficiary with respect to, a person who is to receive any shares and cash, if any, from the participant’s account under the Plan in the event of such participant’s death subsequent to the end of the offering period but prior to delivery to him or her of such shares and cash.  In addition, a participant may file a written designation of a beneficiary who is to receive any cash from the participant’s account under the Plan in the event of such participant’s death prior to the end of the offering period.

 

                                (b)           Such designation of beneficiary may be changed by the participant at any time by written notice.  In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant’s death, the Company shall deliver such shares and/or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such shares and/or cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.

 

                15.           Transferability .  Neither payroll deductions credited to a participant’s account nor any rights with regard to the exercise of an option or to receive shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution or as provided in Section 14 hereof) by the participant.  Any such attempt at assignment, transfer, pledge or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10.

 

                16.           Use of Funds .  All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such payroll deductions.

 

                17.           Reports .  Individual accounts will be maintained for each participant in the Plan.  Statements of account will be given to participating Employees semi-annually within a reasonable period of time following the stock purchase date, which statements will set forth the amounts of payroll deductions, the per share purchase price, the number of shares purchased, the amount of cash rolled over into the next offering period and the remaining cash balance, if any.

 

                18.           Adjustments Upon Changes in Capitalization .  Subject to any required action by the shareholders of the Company, the number of shares of Common Stock covered by each option under the Plan which has not yet been exercised and the number of shares of Common Stock which have been authorized for issuance under the Plan but have not yet been placed under option (collectively, the “Reserves”), as well as the price

 

 



 

per share of Common Stock covered by each option under the Plan which has not yet been exercised, shall be proportionately adjusted for any increase or decrease in the number of issued shares of Common Stock resulting from a stock split or the payment of a stock dividend (but only on the Common Stock) or any other increase or decrease in the number of shares of Common Stock effected without receipt of consideration by the Company; provided, however, that conversion of any convertible securities of the Company shall not be deemed to have been “effected without receipt of consideration”.  Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive.  Except as expressly provided herein, no issue by the Company of shares of stock of any class, or securities convertible into or exercisable for shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to an Option.

 

                The Board may, if it so determines in the exercise of its sole discretion, also make provision for adjusting the Reserves, as well as the price per share of Common Stock covered by each outstanding option under the Plan, in the event that the Company effects one or more reorganizations, recapitalizations, rights offerings or other increases or reductions of shares of its outstanding Common Stock, and in the event of the Company being consolidated with or merged into any other corporation.

 

                19.           Amendment and Termination of the Plan .

 

                                (a)           Amendment and Termination .  The Board may at any time amend, alter, suspend or discontinue the Plan, but no amendment, alteration, suspension or discontinuation shall be made which would impair the rights of any participant under any option theretofore granted without his or her consent.

 

                                (b)           Shareholder Approval .  The Company shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, or with Section 423 of the Internal Revenue Code of 1986, as amended (or any successor statute or rule or other applicable law, rule or regulation), such shareholder approval to be obtained in such a manner and to such a degree as is required by the applicable law, rule or regulation.

 

                                (c)           Effect of Amendment or Termination .  Any such amendment or termination of the Plan shall not affect options already granted hereunder and such options shall remain in full force and effect as if this Plan had not been amended or terminated.

 

                20.           Notices .  All notices or other communications by a participant to the Company under or in connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.  All notices or other communications to a participant by the Company shall be deemed to have been duly given when sent by

 

 



 

the Company by regular mail to the address of the participant on the human resources records of the Company or when posted on AppleLink or any substitute general electronic messaging and bulletin board system utilized by the Company.

 

                21.           Conditions Upon Issuance of Shares .  Shares shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such shares pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, the rules and regulations promulgated thereunder, and the requirements of any stock exchange or automated quotation system upon which the shares may then be listed or quoted, and shall be further subject to the approval of counsel for the Company with respect to such compliance.

 

                                As a condition to the exercise of an option, the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the shares are being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of Law.

                22.           Non-U.S. Employees .  With respect to the Company or any of its Designated Subsidiaries which employs Participants who reside outside of the United States, and notwithstanding anything herein to the contrary, the Board may in its sole discretion amend or vary the terms of the Plan in order to conform such terms with the requirements of local law to meet the objectives and purpose of the Plan, and the Board may, where appropriate, establish one or more sub-plans to reflect such amended or varied provisions.

 

 





Exhibit 23.3

Consent of KPMG LLP

The Board of Directors
Apple Computer, Inc.:

We consent to the incorporation by reference in this registration statement on Form S-8 of Apple Computer, Inc. of our report dated October 15, 2002 with respect to the consolidated balance sheets of Apple Computer, Inc. and subsidiaries as of September 28, 2002 and September 29, 2001, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the years in the three-year period ended September 28, 2002, which report appears in the annual report on Form 10-K of Apple Computer, Inc. for the year ended September 28, 2002.  Our report refers to changes in accounting for goodwill in 2002 and for derivative instruments and hedging activities in 2001.

 

/s/  KPMG LLP

Mountain View, California

June 23, 2003