<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 2, 1997
REGISTRATION NO. 333-28191
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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APPLE COMPUTER, INC.
(Exact Name of Registrant as Specified in its Charter)
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<S> <C>
CALIFORNIA 94-2404110
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
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1 INFINITE LOOP
CUPERTINO, CALIFORNIA 95014
(408) 996-1010
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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JOHN B. DOUGLAS III
SENIOR VICE PRESIDENT, GENERAL COUNSEL, AND SECRETARY
APPLE COMPUTER, INC.
1 INFINITE LOOP
CUPERTINO, CALIFORNIA 95014
(408) 996-1010
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
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COPY TO:
WILLIAM H. HINMAN, JR.
Shearman & Sterling
555 California Street
San Francisco, California 94104
(415) 616-1100
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
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If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE(1) REGISTRATION FEE
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Common Stock, no par value................. 1,500,000 Shares $16.8125 25,218,750.00 $7,642.05
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
on the average high and low prices of the Common Stock as reported on the
Nasdaq National Market on May 23, 1997. The Registration fee of $7,642.05
for the 1,500,000 shares of the Registrant's common stock covered by this
Registration Statement as originally filed on May 30, 1997, was previously
paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM NUMBER
ITEM 14. OTHER EXPENSES OF REGISTRATION AND DISTRIBUTION.
The following table sets forth the estimated expenses of the Registrant in
connection with the offering described in this Registration Statement.
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Securities and Exchange Commission registration fee.............. 7,642.05
Accountants' fees and expenses................................... 5,000.00
Legal fees and expenses.......................................... 30,000.00
Printing and engraving expenses.................................. 2,500.00
Miscellaneous.................................................... 4,857.95
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Total........................................................ 50,000.00
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ITEM 15. 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 (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 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.
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Pursuant to the authority provided in the Articles, the Company has entered
into indemnification agreements with each of its 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 16. EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger, among Apple Computer, Inc., Blackbird Acquisition Corporation and NeXT
Software, Inc., dated as of December 20, 1996. (Incorporated by reference to Exhibit 2 to the
Company's Quarterly Report on Form 10-Q for the quarter ended December 27, 1996.)
3.1 Restated Articles of Incorporation, filed with the Secretary of State of the State of California on
January 27, 1988. (Incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on
Form S-3 (file no. 33-23317) filed July 27, 1988.)
3.2 Amendment to Restated Articles of Incorporation, filed with the Secretary of State of the State of
California on February 5, 1990. (Incorporated by reference to Exhibit 4.6 to the Company's
Registration Statement on Form S-3 (file no. 33-62310) filed with the Securities and Exchange
Commission on May 6, 1993.)
3.3 By-Laws of the Company, as amended through April 4, 1997. (Incorporated by reference to Exhibit 3.3 to
the Company's Quarterly Report on Form 10-Q for the quarter ended March 28, 1997.)
4.1 Common Shares Rights Agreement dated as of May 15, 1989, between the Company and The First National Bank
of Boston, as Rights Agent, including the form of Rights Certificate attached hereto. (Incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on May 26, 1989.)
4.2 Specimen Certificate of Common Stock of Apple Computer, Inc. (Incorporated by reference to Exhibit 4.5
to the Company's Registration Statement on Form S-3 (file no. 33-62310) filed with the Securities and
Exchange Commission on May 6, 1993.)
5.1 Opinion of Shearman & Sterling.*
23.1 Consent of Ernst & Young, LLP independent auditors.*
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (contained on Page II-4).
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* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
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(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference into the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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 of 1933 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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that such 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 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 of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Cupertino, State of California, on the 30th day of
May 1997.
APPLE COMPUTER, INC.
By: /s/ FRED D. ANDERSON
---------------------------------------------
Fred D. Anderson
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL
OFFICER
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Gilbert F. Amelio, Fred D. Anderson and
Robert M. Calderoni, his or her true and lawful attorney-in-fact and agent, with
full power of each to act alone, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, with full power of each to act alone, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully for all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or her substitute or substitutes, may
lawfully 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.
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SIGNATURE TITLE DATE
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Chairman of the Board and
/s/ GILBERT F. AMELIO Chief Executive Officer
- ------------------------------ (Principal Executive May 30, 1997
Gilbert F. Amelio Officer)
Executive Vice President
/s/ FRED D. ANDERSON and Chief Financial
- ------------------------------ Officer (Principal May 30, 1997
Fred D. Anderson Financial Officer)
Senior Vice President,
/s/ ROBERT M. CALDERONI Corporate Controller
- ------------------------------ (Principal Accounting May 30, 1997
Robert M. Calderoni Officer)
/s/ GARETH C.C. CHANG
- ------------------------------ Director May 30, 1997
Gareth C.C. Chang
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SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ BERNARD GOLDSTEIN
- ------------------------------ Director May 30, 1997
Bernard Goldstein
/s/ KATHERINE M. HUDSON
- ------------------------------ Director May 30, 1997
Katherine M. Hudson
/s/ DELANO E. LEWIS
- ------------------------------ Director May 30, 1997
Delano E. Lewis
/s/ A. C. MARKKULA, JR.
- ------------------------------ Director May 30, 1997
A. C. Markkula, Jr.
/s/ EDGAR S. WOOLARD, JR.
- ------------------------------ Director May 30, 1997
Edgar S. Woolard, Jr.
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