Apple
APPLE COMPUTER INC (Form: S-8, Received: 05/18/2001 17:19:40)
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As filed with the Securities and Exchange Commission on May 18, 2001

Registration No.      



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
(State of other jurisdiction of Incorporation or Organization)
  94-2404110
(I.R.S. Employer Identification No.)

One Infinite Loop
Cupertino, California 95014
(Address, including zip code, of principal executive offices)

1998 Executive Officer Stock 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(1)
  Proposed
Maximum
Average
Offering Price
Per Share(2)
  Proposed Maximum
Aggregate
Offering
Price(3)
  Amount of
Registration
Fee(3)

Common Stock, no par value                

—Newly reserved under 1998 Executive Officer Stock Plan   5,000,000 shares   $23.215   $116,075,000   $29,018.75

(1)
Pursuant to Rule 429 promulgated under the Securities Act of 1933, as amended (the "Securities Act"), the prospectus relating to this Registration statement also relates to shares registered under Form S-8 Registration Statements Nos. 033-53895, 333-07437, 333-23725, 333-60455 and 333-37012. A total of 38,000,000 shares issuable under the 1998 Executive Officer Stock plan and its predecessors, the 1990 Stock Option Plan and the 1981 Stock Option Plan, have been previously registered under the Securities Act.

(2)
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the filing fee on the basis of $23.215 per share, which represents the average of the high and low prices of the Common Stock reported on the NASDAQ National Market for May 14, 2001.

(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 .000250.





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 30, 2000;

    (b)
    The Registrant's Quarterly Report on Form 10-Q for the quarter ended December 30, 2000;

    (c)
    The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2001;

    (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 30, 2000; and

    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 de-registers 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.

    Not Applicable.

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. Section 204 of the CGCL provides that this limitation on liability has no effect on a director's liability if (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 contracts or transactions between the corporation and a director) or (vii) under Section 316 of the CGCL (directors' liability for improper dividends, loans and guarantees). Section 317 does not extend to acts or omissions of a director in his capacity as an officer. Further, Section 317 has no effect on claims arising under federal or state securities laws and

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does not affect the availability of injunctions and other equitable remedies available to the Company's shareholders for any violation of a director's fiduciary duty to the Company or its shareholders.

    In accordance with Section 317, the Restated Articles of Incorporation, as amended (the "Articles"), of 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 further provide for indemnification of corporate agents to the maximum extent permitted by the CGCL.

    Pursuant to the authority provided in the Articles, 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
  4.11   Form of Option Agreement

  5.1

 

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

10.A.51

 

1998 Executive Officer Stock Plan, as amended through April 19, 2001

23.1

 

Consent of counsel (included in Exhibit 5.1).

23.3

 

Consent of KPMG LLP with respect to the consolidated financial statements of the Registrant.

24.1

 

Power of Attorney (included on page II-4).

Item 9. Undertakings.

    (a) The 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

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        (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.

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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 18th day of May 2001.

    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, and each of them individually and without the others, his attorneys-in-fact, each with the power of substitution, for him in any and all capacities to sign any amendments to the Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his or her 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 has been signed by the following persons in the capacities and on the dates indicated.

Signature
  Title
  Date
/s/Steven P. Jobs
Steven P. Jobs
  Chief Executive Officer and Director (Principal Executive Officer)   May 18, 2001

/s/ Fred D. Anderson

Fred D. Anderson

 

Executive Vice President and Chief Financial Officer (Principal Financial Officer)

 

May 18, 2001

/s/ Gareth C. C. Chang

Gareth C. C. Chang

 

Director

 

May 18, 2001

/s/ William V. Campbell

William V. Campbell

 

Director

 

May 18, 2001

/s/ Millard S. Drexler

Millard S. Drexler

 

Director

 

May 18, 2001

/s/ Lawrence J. Ellison

Lawrence J. Ellison

 

Director

 

May 18, 2001

/s/ Arthur D. Levinson

Arthur D. Levinson

 

Director

 

May 18, 2001

/s/ Jerome B. York

Jerome B. York

 

Director

 

May 18, 2001

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EXHIBIT INDEX

Exhibit No.

  Description
  Page No.
  4.11   Form of Option Agreement    

  5.1

 

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

 

 

10.A.51

 

1998 Executive Officer Stock Plan, as amended through April 19, 2001

 

 

23.1

 

Consent of Counsel (included in Exhibit 5.1)

 

 

23.3

 

Consent of KPMG LLP with respect to the consolidated financial statements of the Registrant.

 

 

24.1

 

Power of Attorney (included on page II-4)

 

 



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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
SIGNATURES

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Exhibit 4.11

NON-STATUTORY STOCK OPTION AGREEMENT RE: 1998 Executive Officer Stock Plan

    On the Date of Grant shown above, Apple Computer, Inc. (the "Company"), a California corporation, granted to you (the "Optionee") an option to purchase shares of Common Stock, no par value, of the Company, in the number and at the price as shown above, and in all respects subject to the terms, definitions and provisions of the 1998 Executive Officer Stock Plan, as amended (the "Plan") of the Company, which is incorporated herein by reference, as follows:

    1.    NATURE OF THE OPTION.  This option is intended to be a non-statutory option and NOT an incentive stock option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the Code).

    2.    OPTION PRICE.  The Option price indicated above for each share of Common Stock, is equal to the fair market value per share of Common Stock on the date of grant of this option, as determined by the Administrator in accordance with Section 9(a) of the Plan.

    3.    EXERCISE OF OPTION.  This option shall be exercisable in accordance with Section 11 of the Plan as follows:

Number of Shares   Can be Exercised On   Must be Exercised Before

    4.    NON-TRANSFERABILITY OF OPTION.  This option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act or the rules thereunder. This option may be exercised during the lifetime of the Optionee only by the Optionee. The terms of this option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

    5.    TERMINATION OF EMPLOYMENT.  Except as expressly provided in the Plan, this Option shall terminate 90 days following the date of termination of employment and may be exercised during


such 90-day period only to the extent vested and exercisable as of the date of termination of employment.

    6.    MISCELLANEOUS.  This Option (a) shall be binding upon and inure to the benefit of any successor of the Company, (b) shall be governed by the laws of the State of California, and any applicable laws of the United States, and (c) may not be amended except in writing. No contract or right of employment shall be implied by this Agreement, nor shall this Agreement in any way interfere with Optionee's right or the Company's or, where applicable, a Subsidiary's or Affiliated Company's right to terminate Optionee's employment at any time.




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Exhibit 5.1

May 18, 2001

Apple Computer, Inc.
1 Infinite Loop
Cupertino, California 95014

RE: Registration Statement on Form S-8 for the 1998 Executive Officer Stock 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 May 18, 2001 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 5,000,000 additional shares authorized for issuance under the 1998 Executive Officer Stock Plan, as amended (the "1998 Plan") of Apple Computer, Inc.'s Common Stock, no par value. The shares of Apple Common Stock to be registered under the Registration Statement are hereinafter referred to as the "Shares". 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 1998 Plan.

It is my opinion that, when issued and sold in the manner described in the 1998 Plan and pursuant to the agreements which accompany each grant, 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
   



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Exhibit 10.A.51

APPLE COMPUTER, INC. 1998
EXECUTIVE OFFICER STOCK PLAN
(as amended through 4/19/01)

    1.    Purposes of the Plan .  The purposes of this Stock Plan are:

    Options granted under the Plan may be Incentive Stock Options (as defined under Section 422 of the Code) or Nonstatutory Stock Options, as determined by the Administrator at the time of grant. Stock appreciation rights ("SARs") may be granted under the Plan in connection with Options or independently of Options. Stock Purchase Rights may also be granted under the Plan.

    2.    Definitions .  As used herein, the following definitions shall apply:



    3.    Stock Subject To The Plan .  Subject to the provisions of Section 15 of the Plan, the maximum aggregate number of Shares which may be optioned and sold under the Plan or for which SARs or Stock Purchase Rights may be granted and exercised is 43,000,000 Shares. The Shares may be authorized, but unissued, or reacquired Common Stock.

    In the discretion of the Administrator, any or all of the Shares authorized under the Plan may be subject to SARs issued pursuant to the Plan.

    If an Option, SAR or Stock Purchase Right issued under the Plan should expire or become unexercisable for any reason without having been exercised in full, the unpurchased Shares which were subject thereto shall become available for other Options, SARs or Stock Purchase Rights under this Plan (unless the Plan has terminated); however, should the Company reacquire Shares which were issued pursuant to the exercise of an Option or SAR, such Shares shall not become available for future grant under the Plan. If Shares of Restricted Stock are repurchased by the Company at their original purchase price, such shares shall become available for future grant under the Plan.

    4.    Administration of the Plan.   


    5.    Eligibility.   Nonstatutory Stock Options, SARs and Stock Purchase Rights may be granted to the Chairman, Executive Officers and other key employees or to such other individuals as determined


by the Administrator whom the Company has offered a position of Chairman or Executive Officer. Incentive Stock Options may be granted only to Executive Officers and other key employees.

    6.    Limitations.   

    7.    Term of Plan.   Subject to Section 21 of the Plan, the Plan shall become effective upon its adoption by the Board. It shall continue in effect for a term of ten (10) years unless terminated earlier under Section 16 of the Plan.

    8.    Term of Option.   The term of each Option shall be stated in the Agreement. In the case of an Incentive Stock Option, the term shall be ten (10) years from the date of grant or such shorter term as may be provided in the Agreement. Moreover, in the case of an Incentive Stock Option granted to an Optionee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of grant or such shorter term as may be provided in the Agreement.

    9.    Option Exercise Price and Consideration.   


    (b)  Waiting Period and Exercise Dates . At the time an Option is granted, the Administrator shall fix the period within which the Option may be exercised and shall determine any conditions which must be satisfied before the Option may be exercised.

    (c)  Form of Consideration . The Administrator shall determine the acceptable form of consideration for exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator shall determine the acceptable form of consideration at the time of grant. Such consideration may consist entirely of:

    10.    Stock Appreciation Rights.   


    11.    Exercise of Option or SAR.   

    An Option or SAR shall be deemed exercised when the Company receives: (i) written or electronic notice of exercise (in accordance with the terms of the Option or SAR) from the person entitled to exercise the Option or SAR, and (ii) full payment for the Shares with respect to which the Option is exercised. Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Agreement and the Plan. Shares issued upon exercise of an Option shall be issued in the name of the Optionee or, if requested by the Optionee, in the name of the Optionee and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 15 of the Plan.

    Exercising an Option in any manner shall decrease the number of Shares thereafter available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised. Exercise of a SAR in any manner shall, to the extent the SAR is exercised, result in a decrease in the number of Shares which thereafter shall be available for purposes of the Plan, and the SAR shall cease to be exercisable to the extent it has been exercised.


    Notwithstanding the foregoing, however, an Option or SAR may not be exercised after the date the Option or SAR would otherwise expire by its terms due to the passage of time from the date of grant.

    12.    Stock Purchase Rights.   


    13.    Transferability of Options, SARs and Stock Purchase Rights.   Unless determined otherwise by the Administrator, an Option, SAR or Stock Purchase Right may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution or pursuant to a qualified domestic relations order as defined by the Code or Title 1 of the Employee Retirement Income Security Act, and may be exercised, during the lifetime of the Optionee, only by the Optionee. If the Administrator makes an Option, SAR or Stock Purchase Right transferable, such Option, SAR or Stock Purchase Right shall contain such additional terms and conditions as the Administrator deems appropriate.

    14.    Stock Withholding to Satisfy Withholding Tax Obligations.   When an Optionee incurs tax liability in connection with the exercise of an Option, SAR or Stock Purchase Right, which tax liability is subject to tax withholding under applicable tax laws, and the Optionee is obligated to pay the Company an amount required to be withheld under applicable tax laws, the Optionee may satisfy the withholding tax obligation by electing to have the Company withhold from the Shares to be issued upon exercise of the Option, or the Shares to be issued upon exercise of the SAR or Stock Purchase Right, if any, that number of Shares having a Fair Market Value equal to the amount required to be withheld. The Fair Market Value of the Shares to be withheld shall be determined on the date that the amount of tax to be withheld is to be determined (the "Tax Date").

    All elections by an Optionee to have Shares withheld for this purpose shall be made in writing in a form acceptable to the Administrator and shall be subject to the following restrictions:

    In the event the election to have Shares withheld is made by an Optionee and the Tax Date is deferred under Section 83 of the Code because no election is filed under Section 83(b) of the Code, the Optionee shall receive the full number of Shares with respect to which the Option, SAR or Stock Purchase Right is exercised but such Optionee shall be unconditionally obligated to tender back to the Company the proper number of Shares on the Tax Date.

    15.    Adjustments Upon Changes in Capitalization, Dissolution, Merger or Asset Sale.   



    16.    Date of Grant.   The date of grant of an Option, SAR or Stock Purchase Right shall be, for all purposes, the date on which the Administrator makes the determination granting such Option, SAR or Stock Purchase Right, or such other later date as is determined by the Administrator. Notice of the determination shall be provided to each Optionee within a reasonable time after the date of such grant.

    17.    Amendment and Termination of the Plan.   

    18.    Conditions Upon Issuance of Shares.   

    19.    Inability to Obtain Authority.   The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company's counsel to be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of the failure to issue or sell such Shares as to which such requisite authority shall not have been obtained.


    20.    Reservation of Shares.   The Company, during the term of this Plan, will at all times reserve and keep available such number of Shares as shall be sufficient to satisfy the requirements of the Plan.

    21.    Shareholder Approval.   The Plan shall be subject to approval by the shareholders of the Company within twelve (12) months after the date the Plan is adopted. Such shareholder approval shall be obtained in the manner and to the degree required under Applicable Laws.

    22.    Non-U.S. Employees.   Notwithstanding anything in the Plan to the contrary, with respect to any employee who is resident outside of the United States, the Committee may, in its sole discretion, amend the terms of the Plan in order to conform such terms with the requirements of local law or to meet the objectives of the Plan. The Committee may, where appropriate, establish one or more sub-plans for this purpose.




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Exhibit 23.3

CONSENT of KPMG LLP

The Board of Directors
Apple Computer, Inc.:

We consent to incorporation by reference in the registration statement on Form S-8 of Apple Computer, Inc. of our report dated October 17, 2000, relating to the consolidated balance sheets of Apple Computer, Inc. and subsidiaries as of September 30, 2000 and September 25, 1999, 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, 2000, and the related schedule, which report appears in the September 30, 2000, annual report on Form 10-K of Apple Computer, Inc.

/s/  KPMG LLP    

Mountain View, California
May 18, 2001




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