Apple
APPLE COMPUTER INC (Form: S-8, Received: 10/01/2001 08:05:52)
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As filed with the Securities and Exchange Commission on September 28, 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   94-2404110
(State or 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)

1997 Employee Stock Option 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 1997 Employee Stock Option Plan   2,000,000 shares   $15.41   $30,820,000   $7,705


(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. 333-82603, 333-93471, 333-37012 and 333-52116. A total of 63,000,000 shares issuable under the 1997 Employee 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 $15.41 per share, which represents the average of the high and low prices of the Common Stock reported on the NASDAQ National Market for September 26, 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 I

INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS

Item 1. Plan Information.

    Not filed as part of this Registration Statement pursuant to Note to Part I of Form S-8.

Item 2. Registrant Information And Employee Plan Annual Information.

    Not filed as part of this Registration Statement pursuant to Note to Part I of Form S-8.


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)
    The Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 2001;

    (e)
    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

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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 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.49   1997 Employee Stock Option Plan, as amended through June 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 5)

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

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    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.

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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 25th day of September, 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)   September 25, 2001

/s/ 
FRED D. ANDERSON    
Fred D. Anderson

 

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

 

September 25, 2001

/s/ 
WILLIAM V. CAMPBELL    
William V. Campbell

 

Director

 

September 25, 2001

/s/ 
MILLARD S. DREXLER    
Millard S. Drexler

 

Director

 

September 25, 2001

/s/ 
LAWRENCE J. ELLISON    
Lawrence J. Ellison

 

Director

 

September 25, 2001

/s/ 
ARTHUR D. LEVINSON    
Arthur D. Levinson

 

Director

 

September 25, 2001

/s/ 
JEROME B. YORK    
Jerome B. York

 

Director

 

September 25, 2001

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EXHIBIT INDEX

Exhibit No.
  Description
  Page No.
4.11   Form of Option Agreement   7
5.1   Opinion of counsel as to the legality of the securities being registered hereby   9
10.A.49   1997 Employee Stock Option Plan, as amended through June 2001   10
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   19
24.1   Power of Attorney (included on page 5)    

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QuickLinks

PART I
PART II
SIGNATURES
POWER OF ATTORNEY
EXHIBIT INDEX

[Exhibit 4.11]

Standard
NON-STATUTORY STOCK OPTION AGREEMENT RE: 1997 Employee Stock Option Plan

TO:                          [INSERT NAME]

DATE OF GRANT:                          [INSERT DATE]

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 1997 Employee Stock Option 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). The grant of the option is a one-time benefit offered solely to employees and does not create any contractual or other right to receive a grant of additional options or other benefits in lieu of additional options in the future. Future option grants, if any, will be at the sole discretion of the Company, including, but not limited to, the timing of any grant, the number of options, vesting provisions and the exercise price. The future value of the underlying Company shares is unknown and cannot be predicted with certainty. If the underlying Company shares do not increase in value, the option will have no value.

2. NATURE OF THE PLAN. The Plan is discretionary in nature and the Company may amend, cancel or terminate the Plan at any time.

3. EMPLOYEE PARTICIPATION. Your participation in the Plan is voluntary. The value of the option is an extraordinary item of compensation outside the scope of your employment contract, if any. As such, the option is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments.

4. OPTION PRICE. The Option price indicated above for each share of Common Stock, is not less than 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 8(a) of the Plan.

5. EXERCISE OF OPTION. This option shall be exercisable in accordance with Section 10 of the Plan as follows:

     (i) RIGHT TO EXERCISE. This option shall be exercisable, cumulatively, as follows:

    Number of Shares            Can be Exercised On            Must be Exercised Before

    (ii) METHOD OF EXERCISE. This option shall be exercisable by the submission of a Notice of Exercise form which may be obtained from the Company and shall state the election to exercise this option, the number of shares in respect of which this option is being exercised, and such other representations and agreements as to the holder's investment intent with respect to such shares of Common Stock as may be required by the Company. Such Notice of Exercise form shall be signed by the Optionee and shall be delivered in person or by mail or by facsimile to the Company. When exercising an option, the Notice of Exercise form shall be accompanied by payment of the purchase price. Payment of the purchase price shall be by cash, check, or other means as determined by the Administrator pursuant to Section 8(b) of the Plan. When executing a same-day-sale, the Notice of Exercise form must be submitted to Shareholder Relations by 3:00 PM the next business day following

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the day of sale. The certificate or certificates for shares of Common Stock as to which this option shall be exercised shall be registered in the name of the Optionee.

    (iii) RESTRICTIONS ON EXERCISE. This option may not be exercised if the issuance of such shares upon such exercise would constitute a violation of any applicable federal or state securities law or other law or regulation. As a condition to the exercise of this option, the Company may require the Optionee to make such representations, and warranties to the Company as may be required by any applicable law or regulation, including the execution and delivery of a representation letter at the time of exercise of this option.

    6. DATA AUTHORIZATION. You acknowledge and consent to the collection, use, processing and transfer of personal data as described in this paragraph. The Company, its related entities, and your employer hold certain personal information about you, including your name, home address and telephone number, date of birth, social security number or other employee identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all options or any other entitlement to shares of stock awarded, canceled, purchased, vested, unvested or outstanding in your favor, for the purpose of managing and administering the Plan ("Data"). The Company and/or its related entities will transfer Data amongst themselves as necessary for the purpose of implementation, administration and management of your participation in the Plan, and the Company and/or any of its related entities may each further transfer Data to any third parties assisting the Company in the implementation, administration and management of the Plan. These recipients may be located in the European Economic Area, or elsewhere, such as the United States. You authorize them to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required for the administration of the Plan and/or the subsequent holding of shares of stock on your behalf to a broker or other third party with whom you may elect to deposit any shares of stock acquired pursuant to the Plan. You may, at any time, review Data, require any necessary amendments to it or withdraw the consents herein in writing by contacting the Company; however, withdrawing your consent may affect your ability to participate in the Plan.

7. NON-TRANSFERABILITY OF OPTION. This option may not be sold, pledged, assigned, hypothecated, transferred or disposed of 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.

8. 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.

9. 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. The Plan is governed by and subject to U.S. law. Interpretation of the Plan and your rights under the Plan will be governed by provisions of U.S. law. 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.

10. ACCEPTANCE OF OFFER OF OPTION. Unless you affirmatively refuse the offer of the option, in writing, within thirty (30) days of the date of this offer, you will be deemed to have accepted the offer under the terms as provided above and agree that your participation in the Plan is governed by the terms of the Plan document.

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[Exhibit 5.1]

September 25, 2001

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

RE:
Registration Statement on Form S-8 for the 1997 Employee Stock Option 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 September 28, 2001 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 2,000,000 additional shares authorized for issuance under the 1997 Employee Stock Option Plan, as amended (the "1997 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 1997 Plan.

It is my opinion that, when issued and sold in the manner described in the 1997 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.49

APPLE COMPUTER, INC.
1997 EMPLOYEE STOCK OPTION PLAN
(AS AMENDED THROUGH 6/13/01)

    1.   Purposes of the Plan.   The purposes of this 1997 Employee Stock Option Plan are to assist the Company in attracting and retaining high quality personnel, to provide additional incentive to Employees who are not Directors or Officers of the Company and to promote the success of the Company's business. Options granted under the Plan shall be Nonstatutory Stock Options. SARs granted under the Plan may be granted in connection with Options or independently of Options.

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

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    3.   Stock Subject to the Plan.   

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    4.   Administration of the Plan.   

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    5.   Eligibility.   The Administrator may grant Options and SARs only to individuals who are Employees or who are consultants to the Company, or a Subsidiary or Affiliated Company. In no event may an Option or SAR be granted to any individual who, at the time of grant, is an Officer or Director. An Employee who has been granted an Option or SAR may, if he or she is otherwise eligible, be granted an additional Option or Options, SAR or SARs. Each Option shall be evidenced by a written Option agreement, which shall be in such form and contain such provisions as the Administrator shall from time to time deem appropriate. Without limiting the foregoing, the Administrator may, at any time, or from time to time, authorize the Company, with the consent of the respective recipients, to issue new Options or Options in exchange for the surrender and cancellation of any or all outstanding Options, other options, SARs or other stock appreciation rights.

    Neither the Plan nor any Option or SAR agreement shall confer upon any Optionee any right with respect to continuation of employment by the Company (or any Parent, Subsidiary or Affiliated Company), nor shall it interfere in any way with the Optionee's right or the right of the Company (or any Parent, Subsidiary or Affiliated Company) to terminate the Optionee's employment at any time or for any reason.

    If an Option or SAR is granted to an individual who is a consultant to the Company or any Subsidiary or Affiliate, all references in the Plan to "Employee" shall be deemed to include the term "consultant" and all references in the Plan to "employment," "Continuous Status as an Employee" and "termination of employment" shall be deemed to refer to the individualss consultancy or status as a consultant.

    6.   Term of Plan.   The Plan shall become effective upon its adoption by the Board. It shall continue in effect for a term of ten years unless sooner terminated under Section 14 of the Plan.

    7.   Term of Option.   The term of each Option shall be ten (10) years from the date of grant thereof or such shorter term as may be provided in the Option agreement.

    8.   Exercise Price and Consideration.   

    9.   Stock Appreciation Rights.   

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    10.   Method of Exercise.   

14


    11.   Non-Transferability of Options.   Options and SARs 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 I of the Employee Retirement Income Security Act, or the rules thereunder; provided, however, that the Administrator may grant Nonstatutory Stock Options that are freely transferable. The designation of a

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beneficiary by an Optionee or holder of an SAR does not constitute a transfer. An Option or an SAR may be exercised, during the lifetime of the Optionee or SAR holder, only by the Optionee or SAR holder or by a transferee permitted by this Section 11.

    12.   Adjustments Upon Changes in Capitalization or Merger.   

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    13.   Time of Granting Options and SARs.   The date of grant of an Option or SAR shall, for all purposes, be the date on which the Administrator makes the determination granting such Option or SAR. Notice of the determination shall be given to each Employee to whom an Option or SAR is so granted within a reasonable time after the date of such grant.

    14.   Amendment and Termination of the Plan.   

    15.   Conditions Upon Issuance of Shares.   Shares shall not be issued with respect to an Option or SAR unless the exercise of such Option or SAR and the issuance and delivery of such Shares pursuant

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thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange or 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 or SAR or the issuance of Shares upon exercise of an Option or SAR, the Company may require the person exercising such Option or SAR 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 relevant provisions of law.

    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 non-issuance or sale of such Shares as to which such requisite authority shall not have been obtained.

    16.   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.

    17.   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 statements on Forms 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 flow 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
September 25, 2001

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