EXHIBIT 10.A.6
APPLE COMPUTER, INC.
EMPLOYEE STOCK PURCHASE PLAN
(as amended through December 6, 1995)
The following constitute the provisions of the Employee Stock Purchase
Plan (herein called the "Plan") of Apple Computer, Inc. (herein called the
"Company").
1. Purpose. The purpose of the Plan is to provide employees of the
Company and its subsidiaries with an opportunity to purchase Common Stock
of the Company through payroll deductions. It is the intention of the
Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
Section 423 of the Internal Revenue Code of 1986. The provisions of the
Plan shall, accordingly, be construed so as to extend and limit
participation in a manner consistent with the requirements of that section
of the Code.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean the Common Stock, no par value,
of the Company.
(c) "Company" shall mean Apple Computer, Inc., a California
corporation.
(d) "Compensation" shall mean all regular straight time
earnings, payments for overtime, shift premium, incentive compensation,
incentive payments, bonuses and commissions (except to the extent that the
exclusion of any such items is specifically directed by the Board or its
committee).
(e) "Designated Subsidiaries" shall mean the Subsidiaries which
have been designated by the Board from time to time in its sole discretion
as eligible to participate in the Plan.
(f) "Employee" means any person, including an officer, who is
customarily employed for at least twenty (20) hours per week and more than
five (5) months in a calendar year by the Company or one of its Designated
Subsidiaries.
(g) "Plan" shall mean this Employee Stock Purchase Plan.
(h) "Section 16 Person" shall mean any person participating in
the Plan who has been designated by the Board of Directors as having
authority to carry out policy-making functions such that the person is
subject to the reporting and short-swing profit regulations of Section 16
of the Securities Exchange Act of 1934.
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(i) "Subsidiary" shall mean a corporation, domestic or foreign,
of which not less than 50% of the voting shares are held by the Company or
a Subsidiary, whether or not such corporation now exists or is hereafter
organized or acquired by the Company or a Subsidiary.
(j) "1934 Act Section 16" shall mean Section 16 of the
Securities Exchange Act of 1934 and the rules and regulations promulgated
thereunder.
3. Eligibility.
(a) Any Employee as defined in Section 2 who shall be employed
by the Company or one of its Designated Subsidiaries on the date his or her
participation in the Plan is effective shall be eligible to participate in
the Plan, subject to the limitations imposed by Section 423(b) of the
Internal Revenue Code of 1986, as amended; provided that no Section 16
Person who has terminated his or her participation in any offering period
shall be eligible to participate in the Plan during any offering period
commencing less than six months after such election to terminate.
(b) Any provisions of the Plan to the contrary notwithstanding,
no Employee shall be granted an option under the Plan (i) if, immediately
after the grant, such Employee would own shares and/or hold outstanding
options to purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of shares of the Company or
of any Subsidiary of the Company, or (ii) which permits his or her rights
to purchase shares under all employee stock purchase plans of the Company
and its Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) of the fair market value of the shares (determined at the
time such option is granted) for each calendar year in which such stock
option is outstanding at any time.
4. Offering Dates. The Plan shall be implemented by one offering
during each six-month period of the Plan, commencing on or about January 1,
1981 and continuing thereafter until terminated in accordance with Section
19 hereof. The Board of Directors of the Company shall have the power to
change the duration of offering periods with respect to future offerings
without shareholder approval if such change is announced at least fifteen
(15) days prior to the scheduled beginning of the first offering period to
be affected.
5. Participation.
(a) An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions on the
form provided by the Company and filing it with the Company's payroll
office prior to the applicable offering date. Once filed, the subscription
agreement shall remain effective for all subsequent offering periods until
the participant withdraws from the Plan as provided in Section 10 hereof or
files another subscription agreement.
(b) Payroll deductions for a participant shall commence on the
first payroll following the commencement offering date and shall continue
at the same rate until such time as the participant withdraws from the Plan
as provided in Section 10 hereof or another subscription agreement is filed
which changes the rate of payroll deductions.
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6. Payroll Deductions.
(a) At the time a participant files his or her subscription
agreement, he or she shall elect to have payroll deductions made on each
payday during subsequent offering periods at a rate not exceeding ten
percent (10%) of the Compensation which he or she received on such payday,
and the aggregate of such payroll deductions during any offering period
shall not exceed ten percent (10%) of his or her aggregate Compensation
during said offering period.
(b) All payroll deductions made by a participant shall be
credited to his or her account under the Plan. A participant may not make
any additional payments into such account.
(c) A participant may discontinue his or her participation in
the Plan as provided in Section 10, or may lower, but not increase, the
rate of his or her payroll deductions (within the limitations set forth in
subsection (a) above) during an offering period by completing and filing
with the Company a new authorization for payroll deductions. The change in
rate shall be effective within fifteen (15) days following the Company's
receipt of the new authorization; except in the case of a change in the
rate of participation of a Section 16 Person, in which case the change
shall be effective no earlier than the offering period commencing on or
after the end of such fifteen-day period.
(d) A participant may increase his or her rate of payroll
deductions (within the limitations set forth in subsection (a) above) to be
effective for the next offering period by completing and filing with the
Company a new authorization for payroll deductions at least fifteen (15)
days before the beginning of said offering period.
7. Grant of Option.
(a) At the beginning of each six-month offering period, each
eligible Employee participating in the Plan shall be granted an option to
purchase (at the per share option price) up to a number of shares of the
Company's Common Stock determined by dividing the Employee's accumulated
payroll deductions (not to exceed an amount equal to ten percent (10%) of
his or her Compensation during the applicable offering period) by the lower
of (i) eighty-five percent (85%) of the fair market value of a share of the
Company's Common Stock on the date of the commencement of said offering
period, or (ii) eighty-five percent (85%) of the fair market value of a
share of the Company's Common Stock on the date of the expiration of the
offering period, subject to the limitations set forth in Sections 3(b) and
12 hereof, and subject to the following limitation: The number of shares
of the Company's Common Stock subject to any option granted to an Employee
pursuant to this Plan shall not exceed two hundred percent (200%) of the
number of shares of the Company's Common Stock determined by dividing an
amount equal to ten percent (10%) of the Employee's semi-annual
Compensation as of the date of the commencement of the applicable offering
period by eighty-five percent (85%) of the fair market value of a share of
the Company's Common Stock on the date of the commencement of said offering
period. Fair market value of a share of the Company's Common Stock shall
be determined as provided in Section 7(b) herein.
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(b) The option price per share of such shares shall be the lower
of: (i) 85% of the fair market value of a share of the Common Stock of the
Company at the commencement of the six-month offering period; or (ii) 85%
of the fair market value of a share of the Common Stock of the Company at
the time the option is exercised at the termination of the six-month
offering period. The fair market value of the Company's Common Stock on a
given date shall be the mean of the reported bid and asked prices for that
date, or if the Common Stock is listed on an exchange or quoted on the
Nasdaq National Market, the closing sale price on such exchange or
quotation system for that date.
8. Exercise of Option. Unless a participant withdraws from the Plan
as provided in Section 10, his or her option for the purchase of shares
will be exercised automatically at the end of the offering period, and the
maximum number of full shares subject to option will be purchased for him
or her at the applicable option price with the accumulated payroll
deductions in his or her account. During his or her lifetime, a
participant's option to purchase shares hereunder is exercisable only by
him or her.
9. Delivery; Roll-Over of Fractional Share Interests.
(a) As promptly as practicable after the termination of each
offering, the Company shall arrange for the delivery to each participant,
as appropriate, of a certificate representing the number of full shares
purchased upon exercise of his or her option. No fractional shares shall
be issued. Any cash remaining to the credit of a participant's account
under the Plan after a purchase by him or her of shares at the termination
of each offering period which is insufficient to purchase a full share of
Common Stock of the Company subject to option shall remain in such
participant's account and shall be applied to the next succeeding offering
period unless the participant has withdrawn as to future offering periods,
in which case such cash shall be returned to said participant. Any cash
attributable to shares in excess of the number of shares subject to option
to the participant (as determined in accordance with Section 7(a) hereof)
shall be returned to the participant.
(b) A Section 16 Person purchasing shares pursuant to this Plan
in any offering period shall not directly nor indirectly sell such shares
or any beneficial interest in such shares for a period of six months
following the end of such offering period where such sale would constitute
a violation under 1934 Act Section 16.
10. Withdrawal; Termination of Employment.
(a) A participant may withdraw all but not less than all the
payroll deductions credited to his or her account under the Plan at any
time prior to the end of the offering period by giving written notice to
the Company. All of the participant's payroll deductions credited to his
or her account will be paid to him or her promptly after receipt of his or
her notice of withdrawal and his or her option for the current period will
be automatically terminated, and no further payroll deductions for the
purchase of shares will be made during the offering period.
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(b) Upon termination of the participant's employment prior to
the end of the offering period for any reason, including retirement or
death, the payroll deductions credited to his or her account will be
returned to him or her or, in the case of his or her death, to the person
or persons entitled thereto under Section 14, and his or her option will be
automatically terminated.
(c) In the event an Employee fails to remain in the continuous
employ of the Company or one of its Designated Subsidiaries for at least
twenty (20) hours per week during the offering period in which the employee
is a participant, he or she will be deemed to have elected to withdraw from
the Plan and the payroll deductions credited to his or her account will be
returned to him or her and his or her option terminated.
(d) Except as provided in Section 3(a) with respect to Section
16 Persons, a participant's withdrawal from an offering will not have any
effect upon his or her eligibility to participate in a succeeding offering
or in any similar plan which may hereafter be adopted by the Company.
However, a new subscription agreement will have to be filed in such case.
11. No Interest. No interest shall accrue on the payroll deductions
of a participant in the Plan.
12. Stock.
(a) The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be eleven
million five hundred thousand (11,500,000) shares, subject to adjustment
upon changes in capitalization of the Company as provided in Section 18.
The shares to be sold to participants under the Plan may, at the election
of the Company, be either treasury shares or shares authorized but
unissued. If at the termination of any offering period the total number of
shares which would otherwise be subject to options granted pursuant to
Section 7(a) hereof exceeds the number of shares then available under the
Plan (after deduction of all shares for which options have been exercised
or are then outstanding), the Company shall promptly notify the
participants, and shall, in its sole discretion (i) make a pro rata
allocation of the shares remaining available for option grant in as uniform
a manner as shall be practicable and as it shall determine to be equitable,
(ii) terminate the offering period without issuance of any shares or (iii)
obtain shareholder approval of an increase in the number of shares
authorized under the Plan such that all options could be exercised in full.
The Company may delay determining which of (i), (ii) or (iii) above it
shall decide to effect, and may accordingly delay issuances of any shares
under the Plan, for such time as is necessary to attempt to obtain
shareholder approval of any increase in shares authorized under the Plan.
The Company shall promptly notify participants of its determination to
effect (i), (ii) or (iii) above upon making such decision. A participant
may withdraw all but not less than all the payroll deductions credited to
his or her account under the Plan at any time prior to such notification
from the Company. In the event the Company determines to effect (i) or
(ii) above, it shall promptly upon such determination return to each
participant all payroll deductions not applied towards the purchase of
shares.
(b) The participant will have no interest or voting right in
shares covered by his or her option until such option has been exercised.
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(c) Shares to be delivered to a participant under the Plan will
be registered in the name of the participant or in the name of the
participant and the spouse of the participant.
13. Administration. The Plan shall be administered by a committee of
members of the Board of Directors, which committee shall be appointed by
the Board. The administration, interpretation or application of the Plan
by such committee shall be final, conclusive and binding upon all
participants. Members of the committee shall not be permitted to
participate in the Plan.
14. Designation of Beneficiary.
(a) A participant may indicate in his or her subscription
agreement, or may file a written designation of beneficiary with respect
to, a person who is to receive any shares and cash, if any, from the
participant's account under the Plan in the event of such participant's
death subsequent to the end of the offering period but prior to delivery to
him or her of such shares and cash. In addition, a participant may file a
written designation of a beneficiary who is to receive any cash from the
participant's account under the Plan in the event of such participant's
death prior to the end of the offering period.
(b) Such designation of beneficiary may be changed by the
participant at any time by written notice. In the event of the death of a
participant and in the absence of a beneficiary validly designated under
the Plan who is living at the time of such participant's death, the Company
shall deliver such shares and/or cash to the executor or administrator of
the estate of the participant, or if no such executor or administrator has
been appointed (to the knowledge of the Company), the Company, in its
discretion, may deliver such shares and/or cash to the spouse or to any one
or more dependents or relatives of the participant, or if no spouse,
dependent or relative is known to the Company, then to such other person as
the Company may designate.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an
option or to receive shares under the Plan may be assigned, transferred,
pledged or otherwise disposed of in any way (other than by will, the laws
of descent and distribution or as provided in Section 14 hereof) by the
participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Company may treat such
act as an election to withdraw funds in accordance with Section 10.
16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate
purpose, and the Company shall not be obligated to segregate such payroll
deductions.
17. Reports. Individual accounts will be maintained for each
participant in the Plan. Statements of account will be given to
participating Employees semi-annually within a reasonable period of time
following the stock purchase date, which statements will set forth the
amounts of payroll deductions, the per share purchase price, the number of
shares purchased, the amount of cash rolled over into the next offering
period and the remaining cash balance, if any.
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18. Adjustments Upon Changes in Capitalization. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each option under the Plan which has not yet been
exercised and the number of shares of Common Stock which have been
authorized for issuance under the Plan but have not yet been placed under
option (collectively, the "Reserves"), as well as the price per share of
Common Stock covered by each option under the Plan which has not yet been
exercised, shall be proportionately adjusted for any increase or decrease
in the number of issued shares of Common Stock resulting from a stock split
or the payment of a stock dividend (but only on the Common Stock) or any
other increase or decrease in the number of shares of Common Stock 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 Board, whose determination in that respect shall be
final, binding and conclusive. Except as expressly provided herein, no
issue by the Company of shares of stock of any class, or securities
convertible into or exercisable for 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 of Common Stock subject to an Option.
The Board may, if it so determines in the exercise of its sole
discretion, also make provision for adjusting the Reserves, as well as the
price per share of Common Stock covered by each outstanding option under
the Plan, in the event that the Company effects one or more
reorganizations, recapitalizations, rights offerings or other increases or
reductions of shares of its outstanding Common Stock, and in the event of
the Company being consolidated with or merged into any other corporation.
19. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or discontinue the Plan, but no amendment, alteration,
suspension or discontinuation shall be made which would impair the rights
of any participant under any option theretofore granted without his or her
consent.
(b) Shareholder Approval. The Company shall obtain shareholder
approval of any Plan amendment to the extent necessary and desirable to
comply with Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended, or with Section 423 of the Internal Revenue Code of 1986,
as amended (or any successor statute or rule or other applicable law, rule
or regulation), such shareholder approval to be obtained in such a manner
and to such a degree as is required by the applicable law, rule or
regulation.
(c) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect options already granted hereunder
and such options shall remain in full force and effect as if this Plan had
not been amended or terminated.
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20. Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall be deemed to have
been duly given when received in the form specified by the Company at the
location, or by the person, designated by the Company for the receipt
thereof. All notices or other communications to a participant by the
Company shall be deemed to have been duly given when sent by the Company by
regular mail to the address of the participant on the human resources
records of the Company or when posted on Applelink or any substitute
general electronic messaging and bulletin board system utilized by the
Company.
21. Conditions Upon Issuance of Shares. Shares shall not be issued
with respect to an option unless the exercise of such option and the
issuance and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, as amended, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange or automated 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, the Company may
require the person exercising such option to represent and warrant at the
time of any such exercise that (i) 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 applicable provisions of law, and
(ii) in the case of a Section 16 Person, (a) the acquisition of such shares
will not cause a violation of the 1934 Act Section 16 and (b) he or she
will not directly or indirectly sell such shares or any beneficial interest
in such shares for a period of six months following the end of such
offering period where such sale would constitute a violation of the 1934
Act Section 16.
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