As filed with the Securities and Exchange Commission on
March 21, 1997 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 (I.R.S. Employer
of incorporation or Identification No.)
organization)
1 Infinite Loop
Cupertino, California 95014
(Address of Principal Executive Offices)
Senior Officers Restricted Performance Share Plan
and
Employment Agreement dated as of February 28, 1996
between Apple Computer, Inc. and Dr. Gilbert F. Amelio
(Full title of the Plan)
-------
SUSAN L. THORNER, ESQ.
Director, Corporate Law
Apple Computer, Inc.
1 Infinite Loop, M/S 75-7CL
Cupertino, California 95014
(408) 996-1010
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
WILLIAM H. HINMAN, ESQ.
Shearman & Sterling
555 California Street, 20th Floor
San Francisco, California 94104
<PAGE> 1
<TABLE>
<CAPTION> CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Title of Amount Proposed Proposed Amount of
Securities to be Maximum Maximum Registration
to be Registered Offering Aggregate Fee (2)
Registered Price Per Offering
Share (1) Price
Common 2,130,960 $16.5625 $35,294,024 $10,695.16
Stock, no
par value
(1) Computed in accordance with Rule 457(h) solely for the
purpose of computing the amount of the registration fee based
on the average of the high and low sale price reported by the
NASDAQ National Market System for March 7, 1997.
(2) 1/33 of 1% of the maximum aggregate offering price.
<PAGE> 2
Part I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan
Annual Information.*
____________________
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the
Securities Act of 1933, as amended (hereinafter, the
"Securities Act"), and the "Note" to Part I of Form S-8.
<PAGE> 3
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 27, 1996;
(b) the Registrant's quarterly report on Form
10-Q for the quarter ended December 27, 1996;
(c) 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 27, 1996; and
(d) the description of the Registrant's
common stock and associated common stock purchase
rights, contained in the Registrant's Registration
Statements on Form 8-A filed with the Commission
on October 30, 1981 and May 26, 1989, registering such
shares and associated rights pursuant to Section 12 of
the Exchange Act, including any amendment or report
updating such descriptions.
All documents 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 are a part hereof from the date of filing such
documents.
Item 4. Description of Securities.
Not applicable.
<PAGE> 4
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 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. Although
<PAGE> 5
the validity and scope of the legislation underlying Section
317 have not yet been interpreted to any significant extent by
the California courts, Section 317 may relieve directors of
monetary liability to the Company for grossly negligent
conduct, including conduct in situations involving
attempted takeovers of the Company.
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 officers and directors,
indemnifying then 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE> 6
Item 8. Exhibits
The following exhibits are filed as part of this
Registration Statement:
Exhibit No. Description
1* Common Shares Rights Agreement dated
as of May 15, 1989 between the Registrant
and the First National Bank of Boston, as
Rights Agent.
4.2 Apple Computer, Inc. Senior Officers
Restricted Performance Share Plan.
10.A.26** Employment Agreement dated as of
February 28, 1996 between the Registrant
and Dr. Gilbert F. Amelio
5.1 Opinion of counsel as to the legality of the
securities registered hereby.
23.1 Consent of Ernst & Young LLP,
independent auditors, with respect to the
consolidated financial statements of the
Registrant.
23.2 Consent of counsel (included in Exhibit
5.1).
24 Power of Attorney (included on page 11).
* Incorporated by reference to Exhibit 1 to the Registrant's
Registration Statement on Form 8-A filed with the
Commission on May 26, 1989.
** Incorporated by reference to Exhibit 10.A.26 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 29, 1996.
<PAGE> 7
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.
(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.
(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 of 1933, 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
<PAGE> 8
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.
<PAGE> 9
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 17 day of March
1997.
APPLE COMPUTER, INC.
By: /s/Fred D. Anderson
Fred D. Anderson
Executive Vice President and
Chief Financial Officer
<PAGE> 10
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS,
that each person whose signature appears below hereby
constitutes and appoints Gilbert F. Amelio, Fred D.
Anderson and Robert M. Calderoni, 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 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 substitute or substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by
the following persons in the capacities and on the dates
indicated.
Signature Title Date
Chairman and March 17,1997
/s/ Gilbert F. Amelio Chief Executive
Gilbert F. Amelio Officer and
Director (Principal
Executive Officer)
Executive Vice March 17,1997
/s/ Fred D. Anderson President and Chief
Fred D. Anderson Financial Officer
(Principal Financial
Officer)
Senior Vice March 17,1997
/s/Robert M. Calderoni President, Finance
Robert M. Calderoni and Corporate
Controller
(Principal Accounting
Officer)
<PAGE> 11
/s/ Gareth C. Chang
Gareth C. Chang Director March 17,1997
/s/Bernard Goldstein Director March 17,1997
Bernard Goldstein
/s/ Katherine M. Hudson Director March 17,1997
Katherine M. Hudson
/s/ Delano E. Lewis Director March 17,1997
Delano E. Lewis
/s/ A.C. Markkula, Jr Director March 17,1997
A.C. Markkula, Jr.
/s/Edgar S. Woolard,Jr. Director March 17,1997
Edgar S. Woolard, Jr.
<PAGE> 12
INDEX TO EXHIBITS
Exhibit Page
No. Description No.
1* Common Shares Rights Agreement
dated as of May 15, 1989 between the
Registrant and the First National Bank
of Boston, as Rights Agent
4.2 Apple Computer, Inc. Senior Officers
Restricted Performance Share Plan 14
10.A.
6 * Employment Agreement dated as of
February 28, 1996 between the
Registrant and Dr. Gilbert F. Amelio
5.1 Opinion of counsel as to the legality of
the securities registered hereby 26
23.1 Consent of Ernst & Young LLP,
independent auditors, with respect to
the consolidated financial statements of 27
the Registrant
23.2 Consent of counsel (included in Exhibit
5.1)
24 Power of Attorney (included on page 11)
* Incorporated by reference to Exhibit 1 to the
Company's Registration Statement on Form 8-A
filed with the Commission on May 26, 1989.
** Incorporated by reference to Exhibit 10.A.26 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 29, 1996.
<PAGE> 13
APPLE COMPUTER, INC.
SENIOR OFFICERS RESTRICTED PERFORMANCE SHARE PLAN
1. PURPOSE
This annual performance-based incentive plan (the "Performance
Share Plan" or the "Plan") is designed to reward executive
officers of Apple Computer, Inc. and its subsidiaries (the
"Company") for achieving performance objectives. The
Performance Share Plan is intended to provide an incentive for
superior performance and to motivate participating officers
toward even higher achievement and business results, to tie
their goals and interests to those of the Corporation and its
shareholders, to promote the maintenance of substantial stock
ownership levels by officers of the Corporation, and to enable
the Corporation to attract and retain highly qualified executive
officers. The Performance Share Plan is also intended to secure
the full deductibility of incentive compensation payable to the
Corporation's Chief Executive Officer and the four highest
compensated executive officers (collectively the "Covered
Employees") whose compensation is required to be reported in
the Corporation's proxy statement and all compensation payable
hereunder to such persons is intended to qualify as
"performance-based compensation" as described in Section
162(m)(4)(C) of the Internal Revenue Code of 1986, as amended
(the "Code").
2. ELIGIBILITY AND PARTICIPATION
Only (i) those executive officers of the Corporation at the level of
senior vice president or above and (ii) such other key employees
of the Company as are recommended by management to and
designated by the Compensation Committee shall be eligible to
participate in the Performance Share Plan. Prior to or at the time
performance objectives are established for a "Performance
Period", as defined below, the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board")
will designate in writing which executive officers and other key
employees among those who may be eligible to participate in the
Plan shall in fact be participants for such Performance Period
(the "Participants"). The initial Participants in the Performance
Share Plan shall be the individuals holding the positions
identified in Appendix A.
<PAGE> 14
3. PLAN YEAR AND PERFORMANCE OBJECTIVES
(A) PLAN YEAR: The fiscal year of the Performance Share Plan (the
"Plan Year") shall be the fiscal year beginning on the first day of
the Company's fiscal year and ending on the last day of the
Company's fiscal year. The performance period (the
"Performance Period") with respect to which awards may be
payable under the Plan shall be the Plan Year. The initial Plan
Year shall commence on September 30, 1996 and end on
September 26, 1997.
(B) PERFORMANCE GOAL SETTING PERIOD: Within the first
ninety (90) days of each Performance Period the Committee shall
establish in writing, with respect to such Performance Period,
one or more performance goals, a specific target objective or
objectives with respect to such performance goals and an
objective formula or method for computing the amount of
performance shares payable to each Participant under the Plan if
the performance goals are attained. Notwithstanding the
foregoing sentence, for any Performance Period, such goals,
objectives and compensation formulae or methods must be
established within that number of days, beginning on the first
day of such Performance Period, which is no more than twenty-
five percent (25%) of the total number of days in such
Performance Period.
(C) PERFORMANCE MEASUREMENT: Performance goals shall be
based upon one or more of the following business criteria for the
Company:
- earnings per share
- share price
- revenue growth
- return on equity
- return on net assets
- timing objectives for delivery of new products
- retention of key employees
<PAGE> 15
The Committee may adopt other performance goals in its sole and
absolute discretion, provided, however, that in the event the
Committee determines to adopt performance goals based on
criteria other than those stated above, the Committee shall
obtain shareholder approval of such criteria. All performance
goals adopted by the Committee shall be preestablished, objective
performance goals as described in Reg. Sec. 1.162-27(e)(2),
promulgated under Section 162(m) of the Code. Measurements
of the Company's or a Participant's performance against the
performance goals established by the Committee shall be
objectively determinable and, to the extent any performance goal
is expressed in standard accounting terms, such performance
goal shall be determined according to generally accepted
accounting principles as in existence on the date on which the
performance goals are established and without regard to any
changes in such principles after such date.
4. DETERMINATION OF PERFORMANCE SHARE AWARDS
(A) SHARES COVERED BY THE PLAN: Shares awarded under the
Performance Share Plan shall be shares of the Company's
common stock ("Shares"). The maximum number of Shares that
may be awarded under the Plan shall be 2,000,000 in the
aggregate and, in any single Plan Year, 300,000 to any one
individual, subject to adjustment as provided in Section 6(k).
Shares that are converted to cash in accordance with Section 5
shall be treated as shares awarded under the Plan for purposes of
the aggregate and individual limits in the previous sentence.
Any increase in the number of Shares allocated to the Plan must
be approved by the Company's shareholders. Any Shares
deliverable under the Plan may be made available from
authorized but unissued Shares or Shares reacquired by the
Company, including Shares purchased in the open market or in
private transactions.
(B) GRANTS OF PERFORMANCE SHARES: At the beginning of
each Plan Year, each Participant will be granted the target
number of Shares (see Appendix A) that can be earned based on
performance with respect to that Plan Year (the "Conditional
Grant"). At the time the Conditional Grant is made on behalf of
a Participant, certificates representing the target number of
Shares will be registered in the name of the Participant. During
the Plan Year, the certificates representing those Shares will be
<PAGE> 16
held by the Company. The Committee may specify that the
Conditional Grant for a Plan Year will be earned if the applicable
target is achieved for one goal or for any one of a number of
goals. The Committee may also provide that the Conditional
Grant for a Plan Year will be earned only if targets are achieved
for more than one performance goal. The Committee may also
provide that the Conditional Grant to be earned for a given Plan
Year will vary based upon different levels of achievement of the
applicable performance targets.
As soon as practicable after the end of each Performance Period, the
Committee shall certify in writing to what extent the Company
and the Participants have achieved the performance goal or
goals for such Performance Period, including the specific target
objective or objectives and the satisfaction of any other material
terms of the Performance Share Award and the Committee shall
calculate the amount of each Participant's actual award for such
Performance Period based upon the performance goals,
objectives and computation formulae or methods for such
Performance Period (the "Actual Grant"). The Committee shall
have no discretion to increase the maximum amount of any
Participant's Actual Grant as so determined, but may reduce the
amount of or totally eliminate such award, as it determines, in
its absolute and sole discretion, in an amount appropriate to
reflect the Participant's performance.
No Participant's Actual Grant for any Plan Year shall exceed the
number of Shares stated in Appendix A.
Only after the Actual Grant has been awarded to a Participant will
he or she have the rights of a shareholder in the Company with
respect to any of the Shares covered by the Conditional Grant,
including the right to vote the Shares and the right to receive
any distributions with respect to such Shares.
5. PAYMENT OF AWARDS
Approved Performance Share Awards shall be payable by the
Company to each Participant in Shares, or, at the election of the
Participant, fifty percent (50%) in Shares and fifty percent (50%)
in cash ("Cash Election"), as soon as reasonably practicable after
the last day of the relevant Performance Period (the "vesting
date"), provided that the Committee has first certified in writing
<PAGE> 17
that the relevant performance goals were achieved. In the event
that a Participant makes a Cash Election, the amount of cash to
be awarded shall be determined by the Committee as of each
vesting date, such that (subject to the performance goals for that
Performance Period being fully satisfied), the Participant receives
fifty percent of the total value of the Shares earned as of the
vesting date in cash and the remainder in Shares, based on the
closing price of the Company's common stock on the vesting
date. Cash Elections for any Performance Period shall be made
on a form provided for the purpose by the Committee within
sixty (60) days of the date an employee is notified by the
Committee that he or she has been designated as a Participant in
the Plan for that Performance Period. Except in the case of an
Actual Grant made to a Participant's Beneficiary (as hereinafter
defined), a participant is precluded from selling or otherwise
disposing of any interest in Actual Grant Shares until such time
as the Shares are distributed to the participant.
If a Participant ceases to be employed by the Company prior to the
end of any Plan Year, award payment rights will be determined
as follows:
A. Involuntary termination by the Company for cause or voluntary
termination by a Participant would lead to a Participant's
forfeiture of all Performance Share Plan awards for that Plan
Year. Termination for cause is defined as follows: conviction of
(i) a felony, (ii) embezzlement from the Company or (iii) other
business fraud.
B. Termination on account of death, disability, or involuntary
termination not for cause by the Company entitles a Participant,
or the Participant's Beneficiary, to a prorated share of the
Performance Share Award. Prorated awards are determined
based on the number of completed months that the Participant
was employed in the Plan Year divided by 12 months and are
subject to reduction as provided in Section 4(b). Prorated awards
shall be paid at the same time as if the Participant had remained
employed until the end of the Plan Year.
6. OTHER TERMS AND CONDITIONS
(A) TERM OF PLAN: The Performance Share Plan shall become
effective upon its adoption by the Board, subject to the
subsequent approval thereof by the shareholders of the
<PAGE> 18
Company in accordance with Section 6(b). It shall continue in
effect for a term of five (5) years unless sooner terminated under
Section 7 of the Plan.
(B) SHAREHOLDER APPROVAL: No Actual Grants shall be
awarded under the Performance Share Plan unless and until the
material terms (within the meaning of Section 162(m)(4)(C) of
the Code) of the Plan, including the business criteria described in
the Plan, are disclosed to the Company's shareholders and are
approved by the shareholders by a majority of votes cast in
person or by proxy (including abstentions to the extent
abstentions are counted as voting under applicable state law).
(C) NO PARTICIPATION RIGHTS: No person shall have any legal
claim to be granted an award under the Performance Share Plan
and the Committee shall have no obligation to treat Participants
uniformly. Participation in the Performance Share Plan in any
Plan Year does not entitle any Participant to participate in the
Plan in any other Plan Year. The right to receive a targeted
number of performance shares in any given year does not entitle
a Participant to participate with respect to the same number of
Shares in any subsequent year.
(D) NO RIGHTS TO SPECIFIC PROPERTY: Except as may be
otherwise required by law, Conditional Grants and Actual Grants
under the Performance Share Plan shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution, or levy of
any kind, either voluntary or involuntary. No Participant shall
have any claim with respect to any specific assets of the
Company or to stock certificates registered in the Participant's
name prior to the vesting of the shares represented by such
certificates.
(E) NO EMPLOYMENT RIGHTS: Neither the Performance Share
Plan nor any action taken under the Plan shall confer upon any
Participant any right with respect to continuation of
employment by the Company (or any subsidiary or affiliated
company) or to maintain any Participant's compensation at any
level, nor shall it interfere in any way with any Participant's
right or the right of the Company (or any subsidiary or affiliated
company) to terminate a Participant's employment at any time
or for any reason.
<PAGE> 19
(F) OTHER BENEFITS: Performance Share Awards shall not be
considered as part of a Participant's salary or used for the
calculation of any other pay, allowance, pension or other benefit
unless otherwise permitted by other benefit plans provided by
the Company or its subsidiaries, or required by law or by
contractual obligations of the Company or its subsidiaries.
(G) BENEFICIARY: The term "Beneficiary" shall mean the person
or persons designated by a Participant to whom Performance
Share Awards are to be paid pursuant to the terms of the
Performance Share Plan in the event of the Participant's death.
The designation shall be on a form provided by the Committee,
executed by the Participant, and delivered to the Committee. A
Participant may change his or her Beneficiary designation at any
time. If no Beneficiary is designated, the designation is
ineffective, or in the event the Beneficiary dies before the
balance of the Performance Share Award is paid, the balance
shall be paid to the Participant's spouse, or if there is no spouse,
in equal shares to the Participant's lineal descendants, or if there
is no surviving spouse or lineal descendant, to the Participant's
estate.
(H) PERMANENT DISABILITY: For purposes of the Performance
Share Plan, a permanent disability shall mean a disability which
would qualify a Participant to receive benefits under the Apple
Computer, Inc. Long-Term Disability Plan (after satisfying the
elimination period thereunder) as now or hereafter in effect.
(I) INCAPACITY OF PARTICIPANT OR BENEFICIARY: If the
Committee finds that any Participant or Beneficiary to whom a
Performance Share Award is payable under the Performance
Share Plan is unable to care for his or her affairs because of
illness or accident or is under a legal disability, any Performance
Share Award due (unless a prior claim therefore shall have been
made by a duly appointed legal representative) at the discretion
of the Committee, may be paid to the spouse, child, parent or
brother or sister of such Participant or Beneficiary or to any
person whom the Committee has determined has incurred
expense for such Participant or Beneficiary. Any such payment
shall be a complete discharge of the obligations of the Company
under provisions of the Performance Share Plan to the extent of
such payment.
<PAGE> 20
(J) TAX WITHHOLDING: The Company will withhold from each
Actual Grant at the time of payment thereof all applicable state,
local and federal withholding taxes, as required by law, as
determined by Apple in its sole discretion. Such withholding
will be made first from the amount of the Participant's Cash
Election, if any, and second from the Participant's Shares, to the
extent required. Alternatively, in lieu of withholding from
Shares, the Participant may elect to fund the payment of
withholding taxes determined by Apple to be due by making
payment of the full amount of the withholding taxes to Apple
on or before the due date of the withholding taxes.
(K) ADJUSTMENTS DUE TO CHANGES IN CAPITALIZATION
If the outstanding Shares are increased, decreased, or exchanged for
a different number of kind of shares or other securities, or if
additional Shares or other securities are distributed with respect
to such Shares or other securities, through merger,
consolidation, sale of all or substantially all of the property of the
Company, reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split or other distribution
with respect to such Shares or other securities, an appropriate
and proportionate adjustment my be made in (i) the maximum
number and kind of Shares provided for in Section 4(a) of the
Plan, (ii) the annual individual maximum grant limit provided
for in Section 4(a), (iii) the number and kind of Shares subject to
each then outstanding Performance Share Award, and (iv) each
Participant's target number of Shares as provided in Appendix
A.
Adjustments under this Section 6(k) will be made by the
Committee, whose determination as to what adjustments will be
made and the extent thereof will be final, binding and
conclusive on all interested persons. No fractional Share or
other interest will be issued under the Plan on account of any of
such adjustments
(L) CHANGE IN CONTROL: In the event of a change in control (as
defined below) of the Company, the Committee shall make
equitable adjustments to the Participant's Performance Shares in
a manner intended to preserve their economic value as of the
date of the change in control, including modifications to
<PAGE> 21
performance measures and performance goals if necessary;
provided, however, that if a Participant's employment with the
Company is terminated without cause in connection with a
change in control, then any other provision of the Plan to the
contrary notwithstanding, the Participant shall be entitled to
receive the maximum annual number of Performance Shares
for the year in which the change-in-control occurs following
such termination regardless of whether the Performance Goals
are achieved. For purposes of this Plan, change in control is
defined as follows:
A. When any "person", as such term is used in Section 13(d) and
14(d) of the Exchange Act (other than the Company, a Subsidiary
or a Company employee benefit plan, including any trustee of
such plan acting as a trustee) is or becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the combined voting power of the
Company's then outstanding securities; or
B. The occurrence of a transaction requiring shareholder approval
and involving either the sale of all or substantially all of the
assets of the Company or the merger of the Company with or
into another entity.
(M) CONDITIONS UPON ISSUANCE OF SHARES: Shares shall not
be issued with respect to an Award unless the issuance and
delivery of such Shares pursuant 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.
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 of any
Shares hereunder, shall relieve the Company of any liability in
respect of the non-issuance of such Shares as to which such
requisite authority shall not have been obtained.
<PAGE> 22
(N) GOVERNING LAW: The place of administration of the
Performance Share Plan shall be in the State of California and
the validity, construction, interpretation, administration and
effect of the Performance Share Plan and the rules, regulations
and rights relating to the Performance Share Plan, shall be
determined solely in accordance with the laws of the State of
California.
7. ADMINISTRATION
(A) ADMINISTRATOR: The Plan shall be administered by a
Committee designated by the Board to administer the Plan,
which Committee shall be constituted in such a manner as to
permit the Plan and grants and awards thereunder to comply
with Rule 16b-3 as it applies to grants to officers and in such a
manner as to satisfy the Applicable Laws. All members of the
Committee shall be persons who qualify as "outside directors" as
defined under Section 162(m) of the Code. Until changed by the
Board, the Compensation Committee of the Board shall
constitute the Committee hereunder.
(B) POWERS OF THE ADMINISTRATOR: The Committee shall
have full power, authority and discretion to administer and
interpret the provisions of the Performance Share Plan and to
adopt such rules, regulations, agreements, guidelines and
instruments for the administration of the Plan and for the
conduct of its business as the Committee deems necessary or
advisable. Without limitation of the foregoing, subject to the
provisions of the Plan and such limitations as are necessary or
desirable in order for incentive awards paid to Covered
Employees to constitute qualified performance-based
compensation under Section 162(m) of the Code, the Committee
shall have the authority, in its discretion: (i) to determine the
amount of cash to be awarded pursuant to any Cash Election
under Section 5 above; (ii) to determine the employees who
shall be Participants in the Plan; (iii) to interpret the Plan; (iv) to
determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Conditional Grant or Actual Grant
awarded hereunder (including, but not limited to, any restriction
or limitation, or any waiver of forfeiture restrictions regarding
any Grant and/or the Shares relating thereto, based in each case
on such factors as the Administrator shall determine, in its sole
discretion); (v) to approve forms of agreement for use under the
<PAGE> 23
Plan; (vi) to prescribe, amend and rescind rules and regulations
relating to the Plan; (vii) to modify or amend each Grant (with
the consent of the Participant); (viii) to authorize any person to
execute on behalf of the Company any instrument required to
effectuate any Grant previously granted by the Administrator;
and (ix) to make all other determinations deemed necessary or
advisable for the administration of the Plan.
(C) EFFECT OF DECISIONS BY THE ADMINISTRATOR: All
decisions, determinations and interpretations of the
Administrator shall be final and binding on all Participants.
8. AMENDMENT AND TERMINATION
The Board may at any time amend, alter, suspend or terminate the
Plan, as it may deem advisable; provided that except as otherwise
required by law, any amendment required to conform the
Performance Share Plan to the requirements of Section 162(m) of
the Code or to conform the Performance Share Plan or any grant
made thereunder to the requirements for exemption under Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as
amended, or any successor thereto ("Rule 16b-3"), shall be made
by the Committee, and provided that, to the extent necessary and
desirable to comply with Section 162(m) of the Code (or any
other applicable law, regulations or rules), the Company shall
obtain shareholder approval of any Plan amendment in such a
manner and to such a degree as is required, including, without
limitation, any amendment to the class of individuals who are
eligible to participate in the Performance Share Plan, to the
performance criteria specified in Section 2 hereof or to the
maximum incentive award payable to any Participant, unless
shareholder approval is not required in order for incentive
awards paid to Covered Employees to constitute qualified
performance-based compensation under Section 162(m) of the
Code. Any such amendment, alteration, suspension or
termination of the Plan shall not impair the rights of any Plan
Participant under any grant theretofore made without his or her
consent. Such grants shall remain in full force and effect as if
this Plan had not been amended or terminated, except as may
otherwise be required by applicable law.
<PAGE> 24
APPENDIX A
_________________________________________________________
MAXIMUM
TOTAL AWARD ANNUAL
OF MAXIMUM
POSITION PERFORMANCE PERFORMANCE
SHARES SHARE AWARDS
_________________________________________________________
Chief Executive 1,000,000 200,000
Officer
Chief Operating 100,000 20,000
Officer
Chief Financial 80,000 16,000
Officer
Chief 80,000 16,000
Technology
Officer
Chief 80,000 16,000
Administrative
Officer
__________________________________________________________
<PAGE> 25
[Exhibit 5.1]
March 17, 1997
Apple Computer, Inc.
1 Infinite Loop
Cupertino, California 95014
RE: Registration Statement on Form S-8 for the Senior Officers Restricted
Performance Share Plan and Employment Agreement dated as of February
28, 1996 between Apple Computer, Inc. and Dr. Gilbert F. Amelio
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 March 13, 1997
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 2,000,000 shares of Apple Computer,
Inc.'s Common Stock, no par value, authorized for issuance under the Senior
Officers Restricted Performance Share Plan. The shares of Apple Common
Stock to be registered under the Registration Statement are hereinafter
referred to collectively 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 Performance Share Plan.
It is my opinion that, when issued and sold in the manner described in
the Performance Share Plan, 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/ Susan L. Thorner
Susan L. Thorner
Director, Corporate Law
<PAGE> 26
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Senior
Officer Restricted Performance Share Plan and the
Employment Agreement dated as of February 28, 1996 between
Apple Computer, Inc. and Dr. Gilbert F. Amelio of Apple
Computer, Inc. of our report dated October 14, 1996, with
respect to the consolidated financial statements and schedule
of Apple Computer, Inc. included and/or incorportated by
reference in its Annual Report (Form 10-K) for the year ended
September 27, 1996.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Jose, California
March 17, 1997
<PAGE> 27
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