Apple
APPLE INC (Form: S-8, Received: 09/13/2007 06:02:47)

As filed with the Securities and Exchange Commission on September 12, 2007

Registration No.                                     

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


 

FORM S-8

REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 


 

APPLE INC.

(Exact Name of Registrant as Specified in Its Charter)


California

 

94-2404110

(State or Other Jurisdiction of

 

(I.R.S. Employer

Incorporation or Organization)

 

Identification No.)

 

 

 

1 Infinite Loop

Cupertino, California 95014

(Address, Including Zip Code, of Principal Executive Offices)

 


 

Apple Inc. 2003 Employee Stock Plan

Apple Inc. Amended Employee Stock Purchase Plan

(Full Title of the Plan)


 

Donald J. Rosenberg

Senior Vice President, General Counsel and Secretary
Apple Inc.

1 Infinite Loop

Cupertino, California 95014
(408) 996-1010

(Name, Address 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, newly reserved under the 2003 Employee Stock Plan

 

28,000,000 shares

(1)

$

136.00

(2)

$

3,808,000,000

(2)

116,906

(2)

Common Stock, no par value, newly reserved under the Amended Employee Stock Purchase Plan

 

6,000,000 shares

(1)

$

136.00

(2)

$

816,000,000

(2)

$

25,052

(2)

TOTALS

 

34,000,000 shares

(1)

$

136.00

(2)

$

4,624,000,000

(2)

$

141,958

(2)

 

(1)          This Registration Statement covers, in addition to the number of shares of Apple Inc., a California corporation (the “Company” or the “Registrant”), common stock, no par value (the “Common Stock”), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the Apple Inc. 2003 Employee Stock Plan, as amended (the “2003 Plan”), and the Apple Inc. Amended Employee Stock Purchase Plan, as amended (the “ESPP” and, together with the 2003 Plan, the “Plans”), as a result of one or more adjustments under the Plans to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions.

 

(2)          Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on September 10, 2007, as quoted on the Nasdaq Global Market.

 

The Exhibit Index for this Registration Statement is at page 7.

 




EXPLANATORY NOTE

This Registration Statement is filed by the Company to register additional securities issuable pursuant to the Plans and consists of only those items required by General Instruction E to Form S-8.

 

PART I

INFORMATION REQUIRED IN THE

SECTION 10(a) PROSPECTUS

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).

2




PART II

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

Item 3.                                                         Incorporation of Certain Documents by Reference

The following documents of the Company filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

(a)                                   The Company’s Annual Report on Form 10-K for its fiscal year ended September 30, 2006, filed with the Commission on December 29, 2006 (Commission File No. 000-10030);

(b)                                  The Company’s Quarterly Reports on Form 10-Q for its fiscal quarters ended June 30, 2007,  March 31, 2007 and December 30, 2006, filed with the Commission on August 8, 2007, May 10, 2007 and February 2, 2007, respectively (each, Commission File No. 000-10030);

(c)                                   The Company’s Current Reports on Form 8-K, filed with the Commission on May 16, 2007, April 24, 2007, February 21, 2007, January 10, 2007, October 27, 2006 and October 4, 2006 (each, Commission File No. 000-10030);

(d)                                  The description of the Company’s Common Stock contained in its Registration Statement on Form 8-A filed with the Commission on October 30, 1981 (Commission File No. 000-10030), and any other amendment or report filed for the purpose of updating such description; and

(e)                                   The Company’s Registration Statements on Form S-8 relating to the Plans, filed with the Commission on May 23, 2005 (Commission File No. 333-125146), June 24, 2003 (Commission File No. 333-106421), December 24, 2002 (Commission File No. 333-102184), May 18, 2001 (Commission File No. 333-61276), May 15, 2000 (Commission File No. 333-37012), July 31, 1998 (Commission File No. 333-60455), May 21, 1997 (Commission File No. 333-23725), June 16, 1995 (Commission File No. 033-60279), January 19, 1993 (Commission File No. 033-57092), May 29, 1991 (Commission File No. 033-40877), February 8, 1990 (Commission File No. 033-23650) and October 15, 1985 (Commission File No. 033-00866).

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (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, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement.  Any statement contained herein or in a document, all or a portion of which is incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such

3




statement.  Any such statement so modified or superseded shall not be deemed, except as so modified or amended, to constitute a part of this Registration Statement.

Item 5.                                                         Interests of Named Experts and Counsel

Not applicable.

Item 8.                                                      Exhibits

See the attached Exhibit Index at page 7, which is incorporated herein by reference.

4




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 Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California, on September 12, 2007.

APPLE INC.

 

 

 

 

 

By:

/s/ PETER OPPENHEIMER

 

 

 

Peter Oppenheimer

 

 

Senior Vice President and Chief Financial
Officer

 

POWER OF ATTORNEY

Each person whose signature appears below constitutes and appoints Steven P. Jobs, Peter Oppenheimer and Donald J. Rosenberg, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ STEVEN P. JOBS

 

Chief Executive Officer and

 

September 12, 2007

Steven P. Jobs

 

Director
(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ PETER OPPENHEIMER

 

Senior Vice President and

 

September 12, 2007

Peter Oppenheimer

 

Chief Financial Officer

 

 

 

 

(Principal Financial and

 

 

 

 

Accounting Officer)

 

 

 

 

 

 

 

/s/ WILLIAM V. CAMPBELL

 

Director

 

September 12, 2007

William V. Campbell

 

 

 

 

 

 

 

 

 

 

5




 

/s/ MILLARD S. DREXLER

 

Director

 

September 12, 2007

Millard S. Drexler

 

 

 

 

 

 

 

 

 

/s/ ALBERT A. GORE, JR.

 

Director

 

September 12, 2007

Albert A. Gore, Jr.

 

 

 

 

 

 

 

 

 

/s/ ARTHUR D. LEVINSON, PH.D.

 

Director

 

September 12, 2007

Arthur D. Levinson, Ph.D.

 

 

 

 

 

 

 

 

 

/s/ ERIC E. SCHMIDT, PH.D.

 

Director

 

September 12, 2007

Eric E. Schmidt, Ph.D.

 

 

 

 

 

 

 

 

 

/s/ JEROME B. YORK

 

Director

 

September 12, 2007

Jerome B. York

 

 

 

 

 

6




EXHIBIT INDEX

Exhibit

 

 

Number

 

Description of Exhibit

 

 

 

4.1

 

Apple Inc. 2003 Employee Stock Plan. (Filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the Commission on May 16, 2007 (Commission File No. 000-10030) and incorporated herein by this reference.)

 

 

 

4.2

 

Apple Inc. Amended Employee Stock Purchase Plan. (Filed as Exhibit 10.2 to the Company’s Current Report on Form 8-K, filed with the Commission on May 16, 2007 (Commission File No. 000-10030) and incorporated herein by this reference.)

 

 

 

5

 

Opinion of O’Melveny & Myers LLP (opinion re legality).

 

 

 

23.1

 

Consent of KPMG LLP (consent of independent registered public accounting firm).

 

 

 

23.2

 

Consent of Counsel (included in Exhibit 5).

 

 

 

24

 

Power of Attorney (included in this Registration Statement under “Signatures”).

 

7



EXHIBIT 5

[OMM Letterhead]

 

September 12, 2007

 

Apple Inc.
1 Infinite Loop
Cupertino, California  95014

 

Re:          Registration of Securities of Apple Inc.

 

Ladies and Gentlemen:

 

In connection with the registration of up to 34,000,000 shares of Common Stock of Apple Inc., a California corporation (the “Company”), no par value (the “Shares”), under the Securities Act of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission on or about the date hereof, up to 28,000,000 of such Shares (the “2003 Plan Shares”) to be issued or delivered pursuant to the Apple Inc. 2003 Employee Stock Plan, as amended (the “2003 Plan”) and up to 6,000,000 of such Shares (the “ESPP Shares”) to be issued or delivered pursuant to the Apple Inc. Amended Employee Stock Purchase Plan, as amended (the “ESPP”), you have requested our opinion set forth below.

In our capacity as counsel, we have examined originals or copies of those corporate and other records of the Company we considered appropriate.

On the basis of such examination and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that the 2003 Plan Shares and the ESPP Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with such authorization, the provisions of the 2003 Plan or the ESPP, as applicable, and relevant agreements duly authorized by and in accordance with the terms of the 2003 Plan or the ESPP, as applicable, and upon payment for and delivery of the Shares as contemplated in accordance with the 2003 Plan or the ESPP, as applicable, and either (a) the countersigning of the certificate or certificates representing the Shares by a duly authorized signatory of the registrar for the Company’s Common Stock, or (b) the book-entry of the Shares by the transfer agent for the Company’s Common Stock in the name of The Depository Trust Company or its nominee, the Shares will be validly issued, fully paid and non-assessable. 

We consent to your filing this opinion as an exhibit to the Registration Statement.

Respectfully submitted,

 

/s/ O’Melveny & Myers LLP

 



EXHIBIT 23.1

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors

Apple Inc.:

 

We consent to the incorporation by reference in this registration statement on Form S-8 of Apple Inc. (formerly Apple Computer, Inc.) of our reports dated December 29, 2006, with respect to the consolidated balance sheets of Apple Computer, Inc. and subsidiaries as of September 30, 2006 and September 24, 2005, and the related consolidated statements of operations, shareholders’ equity, and cash flows for each of the years in the three-year period ended September 30, 2006, management’s assessment of the effectiveness of internal control over financial reporting as of September 30, 2006 and the effectiveness of internal control over financial reporting as of September 30, 2006, which reports appear in the September 30, 2006 annual report on Form 10-K of Apple Computer, Inc.

As discussed in note 2 to the Consolidated Financial Statements, the consolidated financial statements as of September 24, 2005 and for each of the years in the two-year period ended September 24, 2005 have been restated.

As discussed in note 1 to the Consolidated Financial Statements, the Company adopted the provisions of Statement of Financial Accounting Standards No. 123 (revised 2004), Share-Based Payment , on September 25, 2005.

/s/ KPMG LLP

Mountain View, California
September 12, 2007