As filed with the Securities and Exchange Commission on July 9, 1999
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 of other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
One Infinite Loop
Cupertino, California 95014
(Address, including zip code, of principal executive offices)
1997 Employee Stock Option Plan
(Full title of the plan)
Michael C. Wyatt, Esq.
Associate 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)
Copy to:
Tom Klein, Esq.
Wilson, Sonsini, Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Maximum Proposed
Amount Average Maximum
To Be Offering Aggregate Amount of
Title of Securities Registered Price Per Offering Registration
To Be Registered (1) Share (2) Price (3) Fee (3)
<S> <C> <C> <C> <C>
Common Stock,
no par value
- -Newly reserved under 5,000,000 $ 45.844 $ 29,220,000 $63,723
1997 Employee Stock shares
Option Plan
</TABLE>
(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. 2-70449, 2-85095, 33-866, 33-23650, 33-31075, 33-47596, 33-
53895, 333-07437, and 333-6045. A total of 5,000,000 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 $45.844 per share, which
represents the average of the high and low prices of the Common Stock
reported on the NASDAQ National Market for July 2, 1999.
(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 .000278.
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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 25, 1998;
(b) The Registrant's quarterly reports on Form 10-Q for the quarters
ended December 26, 1998 and March 27, 1999;
(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 25, 1998; 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 deregisters 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.
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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.
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.
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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
December 1998
23.1 Consent of counsel (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors, with
respect to the consolidated financial statements of the
Registrant.
23.3 Consent of KPMG LLP, independent auditors, with respect
to the consolidated financial statements of the Registrant.
24.1 Power of Attorney (included on page 8).
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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, 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 8th day of July, 1999.
APPLE COMPUTER, INC.
By /s/ Fred D. Anderson
Fred D. Anderson
Executive Vice President and
Chief Financial Officer
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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, Nancy R. Heinen and Michael C. Wyatt, 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
Interim Chief Executive July 8, 1999
/s/Steven P. Jobs Officer and Director
Steven P. Jobs (Principal Executive Officer)
Executive Vice President July 8, 1999
/s/Fred D. Anderson and Chief Financial Officer
Fred D. Anderson (Principal Financial Officer)
/s/Gareth C.C. Chang Director July 8, 1999
Gareth C. C Chang
/s/William V. Campbell Director July 8, 1999
William V. Campbell
/s/Millard S. Drexler Director July 8, 1999
Millard S. Drexler
/s/Lawrence J. Ellison Director July 8, 1999
Lawrence J. Ellison
8
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/s/Jerome B. York Director July 8, 1999
Jerome B. York
/s/Edgar S. Woolard, Jr. Director July 8, 1999
Edgar S. Woolard, Jr.
9
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EXHIBIT INDEX
Exhibit No. Description Page No.
4.11 Form of Option Agreement 11
5.1 Opinion of counsel as to the legality of the
securities being registered hereby. 13
10.A.49 1997 Employee Stock Option Plan, as amended
through December 1998 14
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent
auditors, with respect to the consolidated
financial statements of the Registrant. 26
23.3 Consent of KPMG LLP, independent auditors, with
respect to the consolidated financial statements
of the Registrant. 27
24.1 Power of Attorney (included on page 8).
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Exhibit 4.11
NON-STATUTORY STOCK OPTION AGREEMENT RE: 1997 Employee Stock Option 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 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).
2. 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.
3. 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
submition 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 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.
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(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.
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
July 8, 1999
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 July 9, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 5,000,000 additional shares of Apple
Computer, Inc.'s Common Stock, no par value, authorized for issuance under the
1997 Employee Stock Option Plan, as amended (the "Employee Plan"). 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 Employee Plan.
It is my opinion that, when issued and sold in the manner described in the
Employee 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 12/1/98)
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:
"Administrator" means the Board or any of its Committees, as shall be
administering the Plan from time to time pursuant to Section 4 of the Plan.
"Affiliated Company" means a corporation which is not a Subsidiary but
with respect to which the Company owns, directly or indirectly through one or
more Subsidiaries, at least twenty percent of the total voting power, unless
the Administrator determines in its \discretion that such corporation is not
an Affiliated Company.
"Applicable Laws" shall have the meaning set forth in Section 4 of the
Plan.
"Board" means the Board of Directors of the Company.
"Change in Control" shall have the meaning set forth in Section 10 of
the Plan.
"Change in Control Price" shall have the meaning set forth in Section 12
of the Plan.
"Common Stock" means the common stock, no par value, of the Company.
"Company" means Apple Computer, Inc., a California corporation, or its
successor.
"Committee" means a Committee, if any, appointed by the Board in
accordance with Section 4(a) of the Plan.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor thereto.
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"Continuous Status as an Employee" means the absence of any interruption
or termination of the employment relationship with the Company or any
Subsidiary or Affiliated Company. Continuous Status as an Employee shall not
be considered interrupted in the case of (i) medical leave, military leave,
family leave, or any other leave of absence approved by the Administrator,
provided, in each case, that such leave does not result in termination of the
employment relationship with the Company or any Subsidiary or Affiliated
Company, as the case may be, under the terms of the respective Company policy
for such leave; or (ii) in the case of transfers between locations of the
Company or between the Company, its Subsidiaries, its successor or its
Affiliated Companies.
"Director" means a member of the Board.
"Employee" means any person, employed by and on the payroll of the
Company, any Subsidiary or any Affiliated Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fair Market Value" means the value of Common Stock determined as follows:
(I) If the Common Stock is listed on any established stock exchange or
a national market system (including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System), its Fair Market Value shall be the closing
sales price for such stock or the closing bid if no sales were reported, as
quoted on such system or exchange (or the exchange with the greatest volume
of trading in the Common Stock) for the date of determination or, if the date
of determination is not a trading day, the immediately preceding trading day,
as reported in The Wall Street Journal or such other source as the
Administrator deems reliable.
(ii) If the Common Stock is regularly quoted on the NASDAQ System (but
not on the National Market System) or quoted by a recognized securities dealer
but selling prices are not reported, its Fair Market Value shall be the mean
between the high and low asked prices for the Common Stock on the date of
determination or, if there are no quoted prices on the date of determination,
on the last day on which there are quoted prices prior to the date of
determination.
(iii) In the absence of an established market for the Common Stock, the
Fair Market Value thereof shall be determined in good faith by the
Administrator.
"Nonstatutory Stock Option" means an Option that is not intended to be an
incentive stock option within the meaning of Section 422 of the Code.
"Officer" means any individual designated by the Board as an elected
officer of the Company.
"Option" means an option granted pursuant to the Plan.
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"Optioned Stock" means the Common Stock subject to an Option or SAR.
"Optionee" means an Employee who receives an Option or SAR.
"Parent" corporation shall have the meaning defined in Section 424(e) of
the Code.
"Plan" means this Apple Computer, Inc. 1997 Employee Stock Option Plan.
"SAR" means a stock appreciation right granted pursuant to Section 9 below.
"Section 3 Limit" shall have the meaning set forth in Section 3 of the
Plan.
"Share" means a share of the Common Stock, as adjusted in accordance with
Section 12 of the Plan.
"Sixty-Day Period " shall have the meaning set forth in Section 12(f) of
the Plan.
"Subsidiary" corporation has the meaning defined in Section 424(f) of the
Code.
"Tax Date" shall have the meaning set forth in Section 9 of the Plan.
3. Stock Subject to the Plan.
(a) Limit. Subject to the provisions of Section 12 of the Plan, the
maximum aggregate number of Shares which may be optioned and sold under the
Plan or for which SARs may be granted and exercised is 10,000,000 Shares (the
"Section 3 Limit"). 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.
(b) Rules Applicable to the Calculation of the Section 3 Limit. In
calculating the number of Shares available for issuance under the Plan, the
following rules shall apply:
(i) The Section 3 Limit shall be reduced by the number of Shares of
Optioned Stock subject to each outstanding Option or freestanding SAR.
(ii) The Section 3 Limit shall be increased by the number of Shares of
Optioned Stock subject to the portion of an Option or SAR that expires
unexercised or is forfeited for any reason.
(iii) The Section 3 Limit shall be increased by the number of Shares
tendered to pay the exercise price of an Option or the number of Shares of
Optioned Stock withheld to satisfy an Optionee's tax liability in connection
with the exercise of an Option or SAR.
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(iv) Option Stock subject to both an outstanding Option and SAR granted
in connection with the Option shall be counted only once in calculating the
Section 3 Limit.
4. Administration of the Plan.
(a) Composition of Administrator. The Plan may be administered by (i)
the Board or (ii) a Committee designated by the Board, which Committee shall
be constituted in such a manner as to satisfy the applicable securities laws,
California corporate law and the Code (collectively, "Applicable Laws").
Once a Committee has been appointed pursuant to this Section 4(a), such
Committee shall continue to serve in its designated capacity until otherwise
directed by the Board. From time to time the Board may increase the
size of the Committee and appoint additional members thereof, remove members
(with or without cause) and appoint new members in substitution therefor, fill
vacancies (however caused) and remove all members of the Committee and
thereafter directly administer the Plan, all to the extent permitted by the
Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions of the Plan
and, in the case of the Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority,
in its discretion: (i) to determine the Fair Market Value of the Common
Stock in accordance with the Plan; (ii) to determine, in accordance with
Section 8(a) of the Plan, the exercise price per Share of Options and SARs
to be granted; (iii) to determine the Employees to whom, and the time or
times at which, Options and SARs shall be granted and the number of Shares
to be represented by each Option or SAR (including, without limitation,
whether or not a corporation shall be excluded from the definition of
Affiliated Company); (iv) to construe and interpret the provisions of the Plan
and any agreements or certificates issued under or in connection with the
Plan; (v) to determine the terms and conditions, not inconsistent with the
terms of the Plan, of any Option or SAR granted hereunder (including, but not
limited to, any restriction or limitation, or any vesting acceleration or
waiver of forfeiture restrictions regarding any Option or SAR or the Shares
relating thereto, based in each case on such factors as the Administrator
shall determine, in its sole discretion); (vi) to approve forms of agreement
for use under the Plan; (vii) to prescribe, amend and rescind rules and
regulations relating to the Plan; (viii) to modify or amend each Option or
SAR or accelerate the exercise date of any Option or SAR; (ix) to reduce
the exercise price of any Option or SAR to the then current Fair Market Value
if the Fair Market Value of the Common Stock covered by such Option or SAR
shall have declined since the date the Option or SAR was granted; (x) to
authorize any person to execute on behalf of the Company any instrument
required to effectuate the grant of an Option or SAR previously granted by
the Administrator; and (xi) 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 Optionees and any other holders of any Options.
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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 individual's
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.
(a) Exercise Price. The per Share exercise price for the Shares issuable
pursuant to an Option shall be such price as is determined by the
Administrator, but shall in no event be less than 100% of the Fair Market
Value of Common Stock, determined as of the date of grant of the Option. In
the event that the Administrator shall reduce the exercise price, the exercise
price shall be no less than 100% of the Fair Market Value as of the date of
that reduction.
(b) Method of Payment. The consideration to be paid for the Shares to
be issued upon exercise of an Option, including the method of payment, shall
be determined by the Administrator and may consist of (i) cash, (ii) check,
(iii) promissory note, (iv) other Shares which have a Fair Market Value on
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the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option shall be exercised, (v) delivery of a properly executed
exercise notice together with irrevocable instructions to a broker to promptly
deliver to the Company the amount of sale or loan proceeds required to pay
the exercise price, or (vi) any combination of the foregoing methods of
payment and/or any other consideration or method of payment as shall be
permitted under applicable corporate law.
9. Stock Appreciation Rights.
(a) Granted in Connection with Options. At the sole discretion of the
Administrator, SARs may be granted in connection with all or any part of an
Option, either concurrently with the grant of the Option or at any time
thereafter during the term of the Option. The following provisions apply to
SARs that are granted in connection with Options:
(i) The SAR shall entitle the Optionee to exercise the SAR by
surrendering to the Company unexercised a portion of the related Option.
The Optionee shall receive in exchange from the Company an amount equal to
the excess of (x) the Fair Market Value on the date of exercise of the SAR of
the Common Stock covered by the surrendered portion of the related Option
over (y) the exercise price of the Common Stock covered by the surrendered
portion of the related Option. Notwithstanding the foregoing, the
Administrator may place limits on the amount that may be paid upon exercise
of an SAR; provided, however, that such limit shall not restrict the
exercisability of the related Option.
(ii) When an SAR is exercised, the related Option, to the extent
surrendered, shall no longer be exercisable.
(iii) An SAR shall be exercisable only when and to the extent that the
related Option is exercisable and shall expire no later than the date on
which the related Option expires.
(iv) An SAR may only be exercised at a time when the Fair Market Value
of the Common Stock covered by the related Option exceeds the exercise price
of the Common Stock covered by the related Option.
(b) Independent SARs. At the sole discretion of the Administrator, SARs
may be granted without related Options. The following provisions apply to
SARs that are not granted in connection with Options:
(i) The SAR shall entitle the Optionee, by exercising the SAR, to
receive from the Company an amount equal to the excess of (x) the Fair Market
Value of the Common Stock covered by exercised portion of the SAR, as of the
date of such exercise, over (y) the Fair Market Value of the Common Stock
covered by the exercised portion of the SAR, as of the date on which the SAR
was granted; provided, however, that the Administrator may place limits on the
amount that may be paid upon exercise of an SAR.
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(ii) SARs shall be exercisable, in whole or in part, at such times
as the Administrator shall specify in the Optionee's SAR agreement.
(c) Form of Payment. The Company's obligation arising upon the exercise
of an SAR may be paid in Common Stock or in cash, or in any combination of
Common Stock and cash, as the Administrator, in its sole discretion, may
determine. Shares issued upon the exercise of an SAR shall be valued at their
Fair Market Value as of the date of exercise.
10. Method of Exercise.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option or SAR
granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator and as shall be permissible
under the terms of the Plan.
An Option or SAR shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the terms of
the Option or SAR by the person entitled to exercise the Option or SAR and
full payment for the Shares with respect to which the Option is exercised has
been received by the Company. Full payment may, as authorized by the
Administrator and permitted by the Option agreement, consist of any
consideration and method of payment allowable under Section 8(b) of the
Plan. Until the issuance (as evidenced by the appropriate entry on the books
of the Company or of a duly authorized transfer agent of the Company) of the
stock certificate evidencing such Shares, 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. No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 12
of the Plan. An Option or SAR may not be exercised with respect to a fraction
of a Share.
(b) Termination of Continuous Employment. Upon termination of an
Optionee's Continuous Status as Employee (other than termination by reason of
the Optionee's death), the Optionee may, but only within ninety days after the
date of such termination, exercise his or her Option or SAR to the extent that
it was exercisable at the date of such termination. 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.
(c) Death of Optionee. In the event of the death of an Optionee:
(i) Who is at the time of death an Employee and who shall have been in
Continuous Status as an Employee since the date of grant of the Option, the
Option or SAR may be exercised at any time within six (6) months (or such
other period of time not exceeding twelve (12) months as determined by the
Administrator) following the date of death by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or
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inheritance, but only to the extent of the right to exercise that would have
accrued had the Optionee continued living and terminated his or her
employment six (6) months (or such other period of time not exceeding twelve
(12) months as determined by the Administrator) after the date of death; or
(ii) Within ninety days after the termination of Continuous Status as
an Employee, the Option or SAR may be exercised, at any time within six (6)
months (or such other period of time not exceeding twelve (12) months as
determined by the Administrator) following the date of death by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent of the right to exercise that had
accrued at the date of termination.
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.
(d) Stock Withholding to Satisfy Withholding Tax Obligations. When an
Optionee incurs tax liability in connection with the exercise of an Option or
SAR, 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 (including, at the election of the Optionee, any
additional amount which the Optionee desires to have withheld in order to
satisfy in whole or in part the Optionee's full estimated tax in connection
with the exercise) 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, if any, that number of Shares having a Fair Market Value
equal to the amount required to be withheld (and any additional amount desired
to be withheld, as aforesaid). 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:
(i) the election must be made on or prior to the applicable Tax Date;
and
(ii) all elections shall be subject to the consent or disapproval of the
Administrator.
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 beneficiary by an Optionee or
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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.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number of Shares covered by each
outstanding Option and SAR, and the number of Shares which have been
authorized for issuance under the Plan but as to which no Options or SARs
have yet been granted or which have been returned to the Plan upon
cancellation or expiration of an Option or SAR, as well as the price per Share
covered by each such outstanding Option or SAR, shall be proportionately
adjusted for any increase or decrease in the number of issued Shares resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
aggregate number of issued Shares effected without receipt of consideration by
the Company; provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Administrator, whose
determination in that respect shall be final, binding and conclusive. Except
as expressly provided herein, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of Shares subject to an Option or SAR.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, all outstanding Options and SARs will
terminate immediately prior to the consummation of such proposed action,
unless otherwise provided by the Administrator. The Administrator may, in the
exercise of its sole discretion in such instances, declare that any Option or
SAR shall terminate as of a date fixed by the Administrator and give each
Optionee the right to exercise his or her Option or SAR as to all or any part
of the Optioned Stock or SAR, including Shares as to which the Option or SAR
would not otherwise be exercisable.
(c) Sale of Assets or Merger. Subject to the provisions of Section 12(d),
in the event of a proposed sale of all or substantially all of the assets of
the Company, or the merger of the Company with or into another corporation,
each outstanding Option and SAR shall be assumed or an equivalent option or
stock appreciation right shall be substituted by such successor corporation
or a parent or subsidiary of such successor corporation, unless the
Administrator determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, that the Optionee shall have the right to
exercise the Option or SAR as to all of the Optioned Stock, including Shares
as to which the Option or SAR would not otherwise be exercisable. If the
Administrator makes an Option or SAR fully exercisable in lieu of assumption
or substitution in the event of a merger or sale of assets, the Company shall
notify the Optionee that the Option or SAR shall be fully exercisable for a
period of thirty (30) days from the date of such notice, and the Option or SAR
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will terminate upon the expiration of such period. For purposes of this
paragraph, an Option granted under the Plan shall be deemed to be assumed if,
following the sale of assets or merger, the Option confers the right to
purchase, for each Share of Optioned Stock subject to the Option immediately
prior to the sale of assets or merger, the consideration (whether stock, cash
or other securities or property) received in the sale of assets or merger by
holders of Common Stock for each Share held on the effective date of the
transaction (and if such holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
Shares); provided, however, that if such consideration received in the sale of
assets or merger was not solely Common Stock of the successor corporation or
its parent, the Administrator may, with the consent of the successor
corporation and the participant, provide for the per share consideration to be
received upon exercise of the Option to be solely Common Stock of the
successor corporation or its parent equal in Fair Market Value to the per
share consideration received by holders of Common Stock in the sale of assets
or merger.
(d) Change in Control. In the event of a "Change in Control" of the
Company, as defined in Section 12(e), unless otherwise determined by the
Administrator prior to the occurrence of such Change in Control, the following
acceleration and valuation provisions shall apply:
(i) Any Options and SARs outstanding as of the date such Change in
Control is determined to have occurred that are not yet exercisable and vested
on such date shall become fully exercisable and vested; and
(ii) The value of all outstanding Options and SARs shall, unless
otherwise determined by the Administrator at or after grant, be cashed-out.
The amount at which such Options and SARs shall be cashed out shall be equal
to the excess of (x) the Change in Control Price (as defined below) over (y)
the exercise price of the Common Stock covered by the Option or SAR. The
cash-out proceeds shall be paid to the Optionee or, in the event of death of
an Optionee prior to payment, to the estate of the Optionee or to a person who
acquired the right to exercise the Option or SAR by bequest or inheritance.
(e) "Definition of "Change in Control". For purposes of this Section 12,
a "Change in Control" means the happening of any of the following:
( i ) When any "person", as such term is used in Sections 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 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
(ii) The occurrence of a transaction requiring shareholder approval, and
involving the sale of all or substantially all of the assets of the Company or
the merger of the Company with or into another corporation.
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(f) Change in Control Price. For purposes of this Section 12, "Change in
Control Price" shall be, as determined by the Administrator, (i) the highest
Fair Market Value at any time within the sixty-day period immediately
preceding the date of determination of the Change in Control Price by the
Administrator (the "Sixty-Day Period"), or (ii) the highest price paid or
offered, as determined by the Administrator, in any bona fide transaction or
bona fide offer related to the Change in Control of the Company, at any time
within the Sixty-Day Period.
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.
(a) Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan, as it may deem advisable.
(b) Effect of Amendment or Termination. Any such amendment, alteration,
suspension or termination of the Plan shall not impair the rights of any
Optionee or SAR holder under any grant theretofore made without his or her
consent. Such Options and SARs shall remain in full force and effect as if
this Plan had not been amended or terminated.
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 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.
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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.
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[Exhibit 23.2]
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Employee Stock Option Plan, of our report
dated October 14, 1996, with respect to the consolidated financial statements
and schedule of Apple Computer, Inc., as of September 27, 1996 and for the
year then ended, included in its Annual Report (Form 10-K) for the year ended
September 25, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
July 8, 1999
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[Exhibit 23.3]
CONSENT OF INDEPENDENT AUDITORS
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 14, 1998,
relating to the consolidated balance sheets of Apple Computer, Inc. and
subsidiaries as of September 25, 1998 and September 26, 1997, and the
related consolidated statements of operations, shareholders' equity, and cash
flows for each of the years in the two-year period ended September 25, 1998,
and the related schedule, which report appears in the September 25, 1998,
annual report on Form 10-K of Apple Computer, Inc.
/s/ KPMG LLP
Mountain View, California
July 7, 1999
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