<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
APEX PC SOLUTIONS, INC.
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-1577634
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
----------------------
20031 142ND AVENUE, N.E.
WOODINVILLE, WASHINGTON 98072
(Address of principal executive offices, including zip code)
----------------------
APEX PC SOLUTIONS, INC.
1995 EMPLOYEE STOCK PLAN
(Full title of the plan)
----------------------
KEVIN J. HAFER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
20031 142ND AVENUE, N.E.
WOODINVILLE, WASHINGTON 98072
(206) 402-9393
(Name, address and telephone number, including area code, of agent for service)
----------------------
Copies to:
SAMUEL F. SARACINO, ESQ.
KAREN A. ANDERSEN, ESQ.
DAVIS WRIGHT TREMAINE LLP
2600 CENTURY SQUARE
1501 FOURTH AVENUE
SEATTLE, WA 98101-1688
(206) 622-3150
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
AMOUNT
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE (1) FEE
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 1,501,744(2) $9.38 $14,086,358.72 4,268.59
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457 of the Securities Act of 1933, as amended
(the "Securities Act"), solely for the purpose of calculating the
registration fee. The price per share is estimated to be $9.38 based on
the average of the high ($9.63) and low ($9.13) sales prices for the Common
Stock on March 21, 1997, as reported on the Nasdaq National Market System.
(2) Together with an indeterminate number of additional shares of Common Stock
which may be necessary to adjust the number of shares reserved for issuance
pursuant to the Apex PC Solutions, Inc. 1995 Employee Stock Plan as the
result of any future stock split, stock dividend or similar adjustment of
the outstanding Common Stock of the Registrant.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's final prospectus filed with the Securities and
Exchange Commission (the "Commission") pursuant to Rule 424(b) of the
Securities Act in connection with the filing of the Registrant's effective
registration statement on Form SB-2 (File No. 333-17753), filed with the
Commission pursuant to the Securities Act, containing audited financial
statements for the Registrant's latest fiscal year;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the end
of the fiscal year covered by the registrant document referred to in (a) above;
(c) The description of the Registrant's Common Stock which is contained in
the registration statement on Form SB-2 referred to in (a) above; 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 hereto which indicates that the securities offered
hereby have been sold or which deregisters the securities covered hereby then
remaining unsold shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 23B.08.320 of the Washington Business Corporation Act provides that
a corporation's articles of incorporation may contain provisions that provide
indemnity to directors and officers in terms sufficiently broad to permit such
indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act. The
Registrant's Amended and Restated Articles of Incorporation (Exhibit 4.1 hereto)
limit the liability of its directors for monetary damages arising from their
conduct as directors, except for liability relating to acts or omissions that
involve intentional misconduct, a knowing violation of law or the authorization
of unlawful distributions, and liability relating to transactions in which the
directors derive a personal benefit to which they are not legally entitled.
Such limitation does not affect the availability of equitable remedies. The
Registrant's Amended and Restated Articles of Incorporation also provide that
the Registrant will indemnify its directors and officers to the fullest extent
permitted by Washington law. In particular, each officer and director of the
Registrant is entitled to indemnification against all liability, loss and
expense reasonably incurred by such officer or director in connection with any
civil, criminal, administrative or investigative proceeding in which he or she
is involved (whether in his or her official capacity or otherwise) by reason of
the fact that he or she is or was serving as an officer or director of the
Registrant. Washington law currently provides that a corporation may indemnify
an officer or director against liability if the individual acted in good faith
and, in the case of a noncriminal proceeding, if he or she reasonably believed
they were acting in the best interests of the corporation, or, in the case of a
criminal proceeding, if he
2
<PAGE>
or she had no reasonable cause to believe their conduct was unlawful. In the
case of a proceeding against an officer or director brought by or on behalf
of the corporation, Washington law does not permit a corporation to indemnify
an officer or director if he or she is found liable in such proceeding. In
all other proceedings, indemnification is not permitted where the officer or
director is found liable on the basis that he or she improperly received a
personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Amended and Restated Articles of Incorporation (filed as
Exhibit 3.1 to Amendment No. 4 to the Registrant's Form
SB-2 Registration Statement No. 333-17753 filed on
February 14, 1997 as incorporated herein by reference)
4.2 Amended and Restated Bylaws
4.3 Apex PC Solutions, Inc. 1995 Employee Stock Plan
5.1 Opinion of Davis Wright Tremaine LLP regarding legality of
the Common Stock being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Davis Wright Tremaine LLP (included in opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
ITEM 9. UNDERTAKINGS.
(A) The undersigned Registrant hereby undertakes to do the following:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which, individually
or together, represent a fundamental change in the information in the
registration statement; and
(iii) Include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial BONA
FIDE offering thereof.
(3) File a post-effective amendment to remove from registration any of the
securities that remain unsold at the end 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 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
3
<PAGE>
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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Woodinville, State of Washington,
on March 25, 1997.
APEX PC SOLUTIONS, INC.
/s/ Kevin J. Hafer
_____________________________________
Kevin J. Hafer
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Kevin J.
Hafer and Douglas A. Bevis, jointly and severally, as attorney-in-fact, each
with full power of substitution, for such person and in any and all capacities,
to sign any amendments to this registration statement and to file the same, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Kevin J. Hafer President, Chief Executive March 25, 1997
_____________________ Officer and Director
Kevin J. Hafer (Principal Executive Officer)
/s/ Douglas A. Bevis Vice President and Chief March 25, 1997
_____________________ Financial Officer
Douglas A. Bevis (Principal Financial and
Accounting Officer)
/s/Jeffrey T. Chambers
_____________________ Director March 25, 1997
Jeffrey T. Chambers
/s/ Sterling Crum
_____________________ Director March 25, 1997
Sterling Crum
/s/ Edwin L. Harper
_____________________ Director March 25, 1997
Edwin L. Harper
/s/ William McAleer
_____________________ Director March 25, 1997
William McAleer
5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION NUMBERED PAGE
------- ----------- -------------
4.1 Amended and Restated Articles of Incorporation (filed as
Exhibit 3.1 to Amendment No. 4 to the Registrant's Form SB-2
Registration Statement No. 333-17753 filed on February 14, 1997
and incorporated herein by reference)
4.2 Amended and Restated Bylaws
4.3 Apex PC Solutions, Inc. 1995 Employee Stock Plan
5.1 Opinion of Davis Wright Tremaine LLP regarding
legality of the Common Stock being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Davis Wright Tremaine LLP (included
in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED BYLAWS
OF
APEX PC SOLUTIONS, INC.
As Amended through March 6, 1997
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I - REGISTERED OFFICE AND REGISTERED AGENT........................... 1
ARTICLE II - SHAREHOLDERS' MEETINGS.......................................... 1
Section 1. Annual Meetings.......................................... 1
Section 2. Special Meetings......................................... 1
Section 3. Notice of Meetings....................................... 1
Section 4. Waiver of Notice......................................... 2
Section 5. Record Date.............................................. 2
Section 6. Shareholders' List for Meeting........................... 3
Section 7. Quorum and Adjourned Meetings............................ 3
Section 8. Proxies.................................................. 3
Section 9. Voting of Shares......................................... 3
Section 10. Matters to be Considered at Shareholders
Meeting ................................................. 4
ARTICLE III - DIRECTORS...................................................... 4
Section 1. General Powers........................................... 4
Section 2. Number................................................... 4
Section 3. Tenure and Qualifications................................ 4
Section 4. Election................................................. 4
Section 5. Vacancies................................................ 5
Section 6. Resignation.............................................. 5
Section 7. Removal of Directors..................................... 5
Section 8. Meetings................................................. 5
Section 9. Quorum and Voting........................................ 6
Section 10. Compensation............................................. 6
Section 11. Presumption of Assent.................................... 6
Section 12. Committees............................................... 7
ARTICLE IV - SPECIAL MEASURES FOR CORPORATE ACTION........................... 7
Section 1. Actions by Written Consent............................... 7
Section 2. Meetings by Conference Telephone......................... 8
ARTICLE V - OFFICERS......................................................... 8
Section 1. Officers Designated...................................... 8
Section 2. Election, Qualification and Term of Office............... 8
Section 3. Powers and Duties........................................ 9
Section 4. Assistant Secretaries and Assistant Treasurers........... 9
Section 5. Removal.................................................. 9
Section 6. Vacancies................................................ 10
Section 7. Compensation............................................. 10
i
<PAGE>
ARTICLE VI - SHARE CERTIFICATES.............................................. 10
Section 1. Issuance, Form and Execution of Certificates............. 10
Section 2. Transfers................................................ 10
Section 3. Loss or Destruction of Certificates...................... 11
ARTICLE VII - BOOKS AND RECORDS.............................................. 11
Section 1. Books of Accounts, Minutes and Share Register............ 11
Section 2. Financial Statements..................................... 11
Section 3. Copies of Resolutions.................................... 12
ARTICLE VIII - CORPORATE SEAL................................................ 12
ARTICLE IX - AMENDMENT OF BYLAWS............................................. 12
Section 1. By the Shareholders...................................... 12
Section 2. By the Board of Directors................................ 12
ARTICLE X - FISCAL YEAR...................................................... 12
ARTICLE XI - RULES OF ORDER.................................................. 13
ii
<PAGE>
AMENDED AND RESTATED BYLAWS
OF
APEX PC SOLUTIONS, INC.
ARTICLE I
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the corporation shall be located in the State of
Washington at such place as may be fixed from time to time by the board of
directors upon filing of such notices as may be required by law, and the
registered agent shall have a business office identical with such registered
office. Any change in the registered agent or registered office shall be
effective upon filing such change with the office of the Secretary of State of
the State of Washington.
ARTICLE II
SHAREHOLDERS' MEETINGS
Section 1. ANNUAL MEETINGS. The annual meeting of the shareholders of
this corporation, for the purpose of election of directors and for such other
business as may come before it, shall be held either (a) at the registered
office of the corporation, on the last Thursday in June of each and every year,
at 10:00 a.m., but if such day shall be a legal holiday, the meeting shall be
held at the same hour and place on the next succeeding day not a holiday, or (b)
at such other place and time which may be within or without the State of
Washington, as may be determined by the board of directors and specified in the
notice of the meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the shareholders of
this corporation may be called at any time by the holders of twenty-five percent
(25%) of the voting shares of the corporation, or by the president, or by the
board of directors. No business shall be transacted at any special meeting of
shareholders except as is specified in the notice calling for said meeting. The
place of any special meeting shall be the registered office of the corporation
or as otherwise determined, within or without the State of Washington, by the
board of directors and specified in the notice of the meeting.
Section 3. NOTICE OF MEETINGS. Written notice of annual or special
meetings of shareholders stating the place, day, and hour of the meeting, and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called, shall be
<PAGE>
given by the secretary or persons authorized to call the meeting to each
shareholder of record entitled to vote at the meeting. Such notice shall be
given no fewer than ten (10) nor more than sixty (60) days before the meeting
date, except that notice of a meeting to act on an amendment to the Articles of
Incorporation, a plan of merger or share exchange, a proposed sale, lease,
exchange or other disposition of all or substantially all of the assets of the
corporation other than in the usual or regular course of business, or the
dissolution of the corporation shall be given no fewer than twenty (20) nor more
than sixty (60) days before the meeting date. Notice may be transmitted by
mail, private carrier or personal delivery, telegraph or teletype, or telephone,
wire or wireless equipment which transmits a facsimile of the notice. If
mailed, such notice shall be effective when deposited in the United States mail,
first-class postage prepaid, and addressed to the shareholder at his or her
address as it appears on the stock transfer books of the corporation.
Otherwise, such notice shall be effective when received.
Section 4. WAIVER OF NOTICE. Notice of the time, place, and purpose of
any meeting may be waived in writing (either before or after such meeting).
Notice of time or place of a meeting will be waived by any shareholder by that
shareholder's attendance in person or by proxy, unless the shareholder at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting. Objection to consideration of a particular matter that is not
within the purposes described in a special meeting notice will be waived unless
the shareholder objects to considering the matter when it is presented. Any
shareholder so waiving shall be bound by the proceedings of any such meeting in
all respects as if due notice thereof had been given.
Section 5. RECORD DATE. The board of directors may fix in advance a
record date in order to determine the shareholders entitled to notice of a
shareholders' meeting, to demand a special meeting, to vote, or to take any
other action, such date to be not more than seventy (70) days prior to the date
on which the particular action requiring such determination of shareholders is
to be taken. If no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a share dividend or a distribution (other than
one involving the purchase, redemption, or other acquisition of the
corporation's shares), the day before the date on which notice of the meeting is
effective or the date on which the board of directors authorizes such share
dividend or distribution, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders entitled to
vote at any meeting of shareholders has been made as provided in this section,
such determination is effective for any adjournment
2
<PAGE>
thereof, unless the board of directors fixes a new record date, which it must do
if the meeting is adjourned to a date more than one hundred twenty (120) days
after the date fixed for the original meeting.
Section 6. SHAREHOLDERS' LIST FOR MEETING. After fixing a record date
for a shareholders' meeting, the corporation shall prepare an alphabetical list
of the names of all shareholders on the record date who are entitled to notice
of the shareholders' meeting. The list shall be arranged by voting group, and
within each voting group by class or series of shares, and show the address of
and number of shares held by each shareholder. A shareholder, shareholder's
agent, or shareholder's attorney may inspect the shareholder list, beginning ten
(10) days prior to the shareholders' meeting and continuing through the meeting,
at the corporation's principal office or at a place identified in the meeting
notice in the city where the meeting will be held, during regular business hours
and at the shareholder's expense. The shareholders' list shall be kept open for
inspection during such meeting or any adjournment.
Section 7. QUORUM AND ADJOURNED MEETINGS. Unless otherwise provided in
the Articles of Incorporation, including but not limited to those provisions of
the Articles of Incorporation regarding the election of the Series A Directors,
as defined in the Articles of Incorporation, a majority of the votes entitled to
be cast on a matter by a voting group shall constitute a quorum of that voting
group at a meeting of shareholders. Once a share is represented for any purpose
at a meeting, in person or by proxy, other than solely to object to holding the
meeting or transacting business at the meeting, it is deemed present for quorum
purposes for the remainder of the meeting and for any adjournment of that
meeting, unless a new record date is or must be set for that adjourned meeting.
Section 8. PROXIES. At all meetings of shareholders, a shareholder may
vote by proxy executed in writing by the shareholder or by the shareholder's
attorney-in-fact or agent. An appointment of a proxy is effective when received
by the secretary or other officer or agent authorized to tabulate votes. An
appointment is valid for eleven (11) months unless a longer period is expressly
provided in the appointment of the proxy.
Section 9. VOTING OF SHARES. Except as otherwise provided in the
Articles of Incorporation or in these Bylaws, every shareholder of record shall
have the right at every shareholders' meeting to one vote for every share
standing in his or her name on the books of the corporation. If a quorum
exists, action on a matter, other than election of directors, is approved by a
voting group of shareholders if the votes cast within the voting group favoring
the action exceed the votes cast within the
3
<PAGE>
voting group opposing the action, unless otherwise provided in the Washington
Business Corporation Act or the Articles of Incorporation, including but not
limited to those provisions of the Articles of Incorporation that provide for
the redemption of the Series A Preferred Stock and that impose restrictions and
limitations on the actions of the Corporation without the consent of the holders
of the Series A Preferred Stock.
Section 10. MATTERS TO BE CONSIDERED AT SHAREHOLDERS MEETINGS. If any
shareholder desires to bring up any matter for consideration or propose one or
more nominees for election to the board of directors at a meeting of the
shareholders of this corporation, such shareholder must give written notice to
the secretary of this corporation at least ninety (90) days in advance of the
date of the shareholders meeting setting forth in such notice the subject matter
that the shareholder desires to bring up at the meeting and the reason or
reasons for doing so or the name(s) of the nominees proposed for election to the
board of directors. The secretary shall then promptly make and forward copies
of such notice to each of the directors and officers of this corporation so that
they will be aware of the matter. Except as set forth herein, no matter may be
brought up for consideration by any shareholder at a special shareholders
meeting.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. All corporate powers shall be exercised by
or under the authority of, and the business and affairs of the corporation shall
be managed under the direction of, the board of directors except as otherwise
provided by the laws under which this corporation exists or in the Articles of
Incorporation.
Section 2. NUMBER. The number of directors of the corporation shall be
the number provided in the Articles of Incorporation.
Section 3. TENURE AND QUALIFICATIONS. The term of each director shall
expire at the next annual meeting of shareholders. Despite the expiration of a
director's term, the director shall continue to serve until the director's
successor shall have been elected and qualified or until there is a decrease in
the number of directors. Directors need not be residents of the state or
shareholders of the corporation.
Section 4. ELECTION. The directors shall be elected at the
shareholders' annual meeting each year; and if, for any cause, the directors
shall not have been elected at an annual
4
<PAGE>
meeting, they may be elected at a special meeting of shareholders called for
that purpose in the manner provided by these Bylaws. Directors shall be elected
by the holders of classes or series of shares entitled to elect them.
Section 5. VACANCIES. Except as provided in the Washington Business
Corporation Act or the Articles of Incorporation, including but not limited to
those provisions of the Articles of Incorporation regarding the election of
Series A Directors, as defined in the Articles of Incorporation, in the case of
any vacancy in the board of directors, including a vacancy resulting from an
increase in the number of directors, the board of directors, a majority of the
remaining directors if they do not constitute a quorum, or the shareholders may
fill the vacancy.
Section 6. RESIGNATION. Any director may resign at any time by
delivering written notice to the board of directors, its chairperson, or the
president or secretary of the corporation. A resignation shall be effective
when the notice is delivered, unless the notice specifies a later effective
date.
Section 7. REMOVAL OF DIRECTORS. At a meeting of shareholders called
expressly for that purpose, the entire board of directors, or any member
thereof, may be removed, with or without cause, by a vote of the holders of the
shares entitled to vote at an election of such directors.
Section 8. MEETINGS.
(a) The board of directors shall hold an annual meeting immediately
after the annual shareholders' meeting, at the same place as the annual
shareholders' meeting or at such other place and at such time as may be
determined by the directors. No notice of the annual meeting of the board of
directors shall be necessary.
(b) Special meetings may be called at any time and place by the
president, secretary, or any one (1) director. Notice of the time and place of
each special meeting shall be given by the secretary, or the persons calling the
meeting. The notice may be written or oral and shall be given at least two (2)
days in advance of the meeting. Written notice may be given by mail, private
carrier or personal delivery, telegraph or teletype, or telephone, wire or
wireless equipment which transmits a facsimile of the notice. Oral notice may
be communicated in person or by telephone, wire or wireless equipment which does
not transmit a facsimile of the notice. Such notice shall be effective at the
earlier of (i) when it is received, or (ii) five (5) days after it is deposited
in the United States mail, first-class postage prepaid, and correctly
5
<PAGE>
addressed. The purpose of the meeting need not be given in the notice. Notice
of any special meeting may be waived in writing (either before or after such
meeting) and will be waived by any director by attendance at or participation in
the meeting, unless the director at the beginning of the meeting, or promptly
upon the director's arrival, objects and does not thereafter vote for or assent
to action taken at the meeting.
(c) Regular meetings of the board of directors may be held at such
place and on such day and hour as shall from time to time be fixed by resolution
of the board of directors. No notice of regular meetings of the board of
directors shall be necessary.
(d) At any meeting of the board of directors, any business may be
transacted, and the board may exercise all of its powers.
Section 9. QUORUM AND VOTING.
(a) A majority of the number of directors specified in or fixed in
accordance with the Articles of Incorporation or these Bylaws shall constitute a
quorum, but a lesser number may adjourn any meeting from time to time until a
quorum is obtained, and no further notice thereof need be given.
(b) If a quorum is present when a vote is taken, the affirmative vote
of a majority of the directors present at the meeting is the act of the board of
directors. If enough directors withdraw from a meeting to leave less than a
quorum, the remaining directors may not continue to transact business at such
meeting.
Section 10. COMPENSATION. By resolution of the board of directors, the
directors may be paid their expenses, if any, of attendance at each meeting of
the board of directors and may be paid a fixed sum for attendance at each
meeting of the board of directors or a stated salary as director. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
Section 11. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate
matter is taken shall be deemed to have assented to the action taken unless:
(i) the director objects at the beginning of the meeting, or
promptly upon the director's arrival, to holding it or
transacting business at the meeting;
6
<PAGE>
(ii) the director's dissent or abstention from the action taken
is entered in the minutes of the meeting; or
(iii) the director delivers written notice of the director's
dissent or abstention to the presiding officer of the meeting
before its adjournment or to the corporation within a reasonable
time after adjournment of the meeting.
The right of dissent or abstention is not available to a director who votes in
favor of the action taken.
Section 12. COMMITTEES. The board of directors, by resolution approved
by a majority of the full board of directors, may designate from among its
members one or more committees, each of which must have two (2) or more members
and, to the extent provided in such resolution, such committees shall have and
may exercise all the authority of the board of directors, except that no such
committee shall have the authority to: authorize or approve a distribution
except according to a general formula or method prescribed by the board of
directors; approve or propose to shareholders action that the Washington
Business Corporation Act requires to be approved by shareholders; fill vacancies
on the board of directors or on any of its committees; adopt amendments to the
Articles of Incorporation not requiring shareholder approval; adopt, amend or
repeal the Bylaws; approve a plan of merger not requiring shareholder approval;
or authorize or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences, and limitations of a
class or series of shares, except that the board of directors may authorize a
committee, or a senior executive officer of the corporation, to do so within
limits specifically prescribed by the board of directors.
ARTICLE IV
SPECIAL MEASURES FOR CORPORATE ACTION
Section 1. ACTIONS BY WRITTEN CONSENT. Any corporate action required
or permitted by the Articles of Incorporation, Bylaws, or the Washington
Business Corporation Act, to be voted upon or approved at a duly called meeting
of the directors, committee of directors, or shareholders may be accomplished
without a meeting if one or more unanimous written consents of the respective
directors, committee members, or shareholders entitled to vote on the actions,
setting forth the actions so taken, shall be signed by all the directors,
committee members, or shareholders entitled to vote thereon, as the case may be.
Such consents may be signed in counterpart. In the case of action by the
directors or a committee of the directors, the
7
<PAGE>
consents may be signed before or after the action is taken. Action taken by
unanimous written consent of the directors or a committee of the directors is
effective when the last director or committee member signs the consent, unless
the consent specifies a later effective date. Action taken by unanimous written
consent of the shareholders is effective when all consents are in possession of
the corporation, unless the consent specifies a later effective date.
Section 2. MEETINGS BY CONFERENCE TELEPHONE. Members of the board of
directors, members of a committee of directors, or shareholders may participate
in or conduct their respective meetings by means of a conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other at the same time, and participation in a meeting by
such means shall constitute presence in person at such meeting.
ARTICLE V
OFFICERS
Section 1. OFFICERS DESIGNATED. The officers of the corporation shall
be a president, one or more vice presidents (the number thereof to be determined
by the board of directors), a secretary, and a treasurer, each of whom shall be
elected by the board of directors. Such other officers and assistant officers
as may be deemed necessary may be elected or appointed by the board of
directors. Any two or more offices may be held by the same person.
The board of directors may, in its discretion, elect a chairperson of the
board of directors and, if a chairperson has been elected, the chairperson
shall, when present, preside at all meetings of the board of directors and the
shareholders and shall have such other powers as the board may prescribe.
Section 2. ELECTION, QUALIFICATION AND TERM OF OFFICE. Each of the
officers shall be elected by the board of directors. None of said officers,
except the president and the chairperson of the board of directors, need be a
director, but a vice president who is not a director cannot succeed to or fill
the office of president. The officers shall be elected by the board of
directors at each annual meeting of the board of directors. Except as
hereinafter provided, each of said officers shall hold office from the date of
his or her election until the next annual meeting of the board of directors and
until a successor shall have been duly elected and qualified.
8
<PAGE>
Section 3. POWERS AND DUTIES.
(a) PRESIDENT. Unless otherwise determined by the board of
directors, the president shall be the chief executive officer of the corporation
and, subject to the direction and control of the board of directors, shall have
general charge and supervision over its property, business, and affairs. The
president shall, unless a chairperson of the board of directors has been elected
and is present, preside at meetings of the shareholders and the board of
directors.
(b) VICE PRESIDENT. In the absence of the president or the
president's inability to act, the senior vice president shall act in the
president's place and stead and shall have all the powers and authority of the
president, except as limited by resolution of the board of directors.
(c) SECRETARY. The secretary shall: (1) keep the minutes of the
shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; (2) see that all notices are duly given in accordance
with the provisions of these Bylaws or as required by law; (3) be custodian of
the corporate records and of the seal of the corporation and affix the seal of
the corporation to all documents as may be required; (4) keep, or cause to be
kept, a register of the post office address of each shareholder which shall be
furnished to the secretary by such shareholder; (5) have general charge of the
stock transfer books of the corporation; and (6) in general perform all duties
incident to the office of secretary and such other duties as from time to time
may be assigned to the secretary by the president or by the board of directors.
(d) TREASURER. Subject to the direction and control of the board of
directors, the treasurer shall have the custody, control, and disposition of the
funds and securities of the corporation and shall account for the same, and at
the expiration of term of office, the treasurer shall turn over to his or her
successor all property of the corporation in his or her possession.
Section 4. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers shall perform such duties as
shall be assigned to them by the secretary or the treasurer, respectively, or by
the president or the board of directors.
Section 5. REMOVAL. The board of directors shall have the right to
remove any officer whenever in its judgment the best interests of the
corporation will be served thereby.
9
<PAGE>
Section 6. VACANCIES. The board of directors shall fill any office
which becomes vacant with a successor who shall hold office for the unexpired
term and until a successor shall have been duly elected and qualified.
Section 7. COMPENSATION. The compensation of all officers of the
corporation shall be fixed by the board of directors.
ARTICLE VI
SHARE CERTIFICATES
Section 1. ISSUANCE, FORM AND EXECUTION OF CERTIFICATES. No shares of
the corporation shall be issued unless authorized by the board. Such
authorization shall include the maximum number of shares to be issued, the
consideration to be received for each share, and a statement that the board has
determined that such consideration is adequate. Certificates for shares of the
corporation shall be in such form as is consistent with the provisions of the
Washington Business Corporation Act and shall state:
(i) the name of the corporation and that the corporation is
organized under the laws of this state;
(ii) the name of the person to whom issued; and
(iii) the number and class of shares and the designation of the
series, if any, which such certificate represents.
Certificates shall be signed by two (2) officers of the corporation, and the
seal of the corporation may be affixed thereto. If any officer who has signed
or whose facsimile signature has been placed upon any certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
the corporation with the same effect as if the person were such officer at the
date of its issue. Certificates may be issued for fractional shares. No
certificate shall be issued for any share until the consideration established
for its issuance has been paid.
Section 2. TRANSFERS. Shares may be transferred by delivery of the
certificate therefor, accompanied either by an assignment in writing on the back
of the certificate or by a written power of attorney to assign and transfer the
same, signed by the record holder of the certificate. The board of directors
may, by resolution, provide that beneficial owners of shares shall be deemed
holders of record for certain specified purposes.
10
<PAGE>
Except as otherwise specifically provided in these Bylaws, no shares shall be
transferred on the books of the corporation until the outstanding certificate
therefor has been surrendered to the corporation.
Section 3. LOSS OR DESTRUCTION OF CERTIFICATES. In case of loss or
destruction of any certificate of shares, another may be issued in its place
upon proof of such loss or destruction and upon the giving of a satisfactory
indemnity bond to the corporation. A new certificate may be issued without
requiring any bond when, in the judgment of the board of directors, it is proper
to do so.
ARTICLE VII
BOOKS AND RECORDS
Section 1. BOOKS OF ACCOUNTS, MINUTES AND SHARE REGISTER. The
corporation shall keep as permanent records minutes of all meetings of its
shareholders and board of directors, a record of all actions taken by the
shareholders and board of directors without a meeting, and a record of all
actions taken by a committee of the board of directors exercising the authority
of the board of directors on behalf of the corporation. The corporation shall
maintain appropriate accounting records. The corporation or its agent shall
maintain a record of its shareholders, in a form that permits preparation of a
list of the names and addresses of all shareholders, in alphabetical order by
class of shares showing the number and class of shares held by each. The
corporation shall keep a copy of the following records at its principal office:
the Articles or Restated Articles of Incorporation and all amendments to them
currently in effect; the Bylaws or Restated Bylaws and all amendments to them
currently in effect; the minutes of all shareholders' meetings and records of
all actions taken by shareholders without a meeting, for the past three (3)
years; its financial statements for the past three (3) years, including balance
sheets showing in reasonable detail the financial condition of the corporation
as of the close of each fiscal year, and an income statement showing the results
of its operations during each fiscal year; all written communications to
shareholders generally within the past three (3) years; a list of the names and
business addresses of its current directors and officers; and its most recent
annual report delivered to the Secretary of State of Washington.
Section 2. FINANCIAL STATEMENTS. The annual financial statements for
shareholders shall be prepared not later than four (4) months after the close of
each fiscal year and in any event prior to the annual meeting of shareholders.
If financial statements are prepared by the corporation for any purpose on a
particular basis (I.E., on the basis of generally accepted
11
<PAGE>
accounting principles or on some other basis), the annual financial statements
must be prepared, and disclose that they are prepared, on that same basis. If
the annual financial statements are reported upon by a public accountant, the
accountant's report must accompany them. If not, the statements must be
accompanied by a statement of the president or the person responsible for the
corporation's accounting records, stating the person's reasonable belief whether
the statements were prepared on the basis of generally accepted accounting
principles and, if not, describing the basis of preparation, and describing any
respects in which the statements were not prepared on a basis of accounting
consistent with the basis used for statements prepared for the preceding year.
Section 3. COPIES OF RESOLUTIONS. Any person dealing with the
corporation may rely upon a copy of any of the records of the proceedings,
resolutions, or votes of the board of directors or shareholders, when certified
by the president or secretary.
ARTICLE VIII
CORPORATE SEAL
The board of directors may provide for a corporate seal which shall have
inscribed thereon the name of the corporation, the year and state of
incorporation and the words "corporate seal".
ARTICLE IX
AMENDMENT OF BYLAWS
Section 1. BY THE SHAREHOLDERS. These Bylaws may be amended, altered,
or repealed at any annual or special meeting of the shareholders; provided that,
in the case of a special meeting, notice of the proposed alteration or amendment
is contained in the notice of the meeting.
Section 2. BY THE BOARD OF DIRECTORS. These Bylaws may be amended,
altered, or repealed by the board of directors at any annual, regular or special
meeting of the board.
ARTICLE X
FISCAL YEAR
The fiscal year of the corporation shall be set by resolution of the board
of directors.
12
<PAGE>
ARTICLE XI
RULES OF ORDER
The rules contained in the most recent edition of Robert's Rules of Order,
Newly Revised, shall govern all meetings of shareholders and directors where
those rules are not inconsistent with the Articles of Incorporation, these
Bylaws, or special rules of order of the corporation.
13
<PAGE>
APEX PC SOLUTIONS INC.
1995 EMPLOYEE STOCK PLAN
(As Adopted December 29, 1995)
1. PURPOSES OF THE PLAN. The purposes of this Plan are to attract and
retain the best available personnel for positions of substantial responsibility,
to provide additional incentive to Employees and Outside Directors of the
Company and its Parent and Subsidiaries, if any, and to promote the success of
the Company's business. Options granted under this Plan may be Incentive Stock
Options or Nonstatutory Stock Options, as determined by the Administrator at the
time of grant.
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) "ADMINISTRATOR" means the Board or any of its Committees
appointed pursuant to Section 4 of this Plan.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended.
(d) "COMMITTEE" means the Committee appointed by the Board of
Directors in accordance with Section 4(a) of this Plan.
(e) "COMMON STOCK" means the Common Stock of the Company.
(f) "COMPANY" means Apex PC Solutions, Inc., a Washington
corporation.
(g) "CONTINUOUS STATUS AS AN EMPLOYEE" means an Employee's absence of
any interruption or termination of his or her employment relationship with the
Company or any Subsidiary. Continuous Status as an Employee shall not be
considered interrupted in the case of (i) sick leave; (ii) military leave; (iii)
any other leave of absence approved by the Administrator, provided that such
leave is for a period of not more than ninety (90) days, unless reemployment
upon the expiration of such leave is guaranteed by contract or statute, or
unless provided otherwise pursuant to Company policy adopted from time to time;
or (iv) transfers between locations of the Company or between the Company, its
Subsidiaries or its successor.
(h) "EMPLOYEE" means any person, including officers and directors,
employed by the Company or any Parent or Subsidiary of the Company. The payment
of a director's fee by the Company (or a Parent or Subsidiary) shall not be
sufficient to constitute "employment" by the Company (or Parent or Subsidiary).
Page 1 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
(i) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(j) "FAIR MARKET" means, as of any date, 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 for the last market trading day prior to the time of
determination) as reported in the Wall Street Journal or such other source as
the Administrator deems reliable;
(ii) If the Common Stock is quoted on the NASDAQ System (but not
on the National Market System thereof or regularly 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 last market trading day prior to the day of determination, as reported in
the Wall Street Journal or such other source as the Administrator deems
reliable; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value shall be determined in good faith by the
Administrator.
(k) "INCENTIVE STOCK OPTION" means an Option intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(l) "NONSTATUTORY STOCK" means an Option not intended to qualify as
an Incentive Stock Option.
(m) "OPTION" means a stock option granted pursuant to this Plan.
(n) "OPTIONED STOCK" means the Common Stock subject to an Option.
(o) "OPTIONEE" means an Employee or Outside Director who receives an
Option.
(p) "OUTSIDE DIRECTOR" means a director of the Company (or Parent or
Subsidiary) who is not an Employee.
(q) "PARENT" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(r) "PLAN" means this 1995 Employee Stock Plan.
Page 2 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
(s) "SHARE" means a share of the Common Stock, as adjusted in
accordance with Section 12 of the Plan.
(t) "SUBSIDIARY" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. STOCK SUBJECT TO THIS PLAN. Subject to the provisions of Section 12
of this Plan, the maximum aggregate number of shares which may be optioned and
sold under this Plan is 2,161,760 Shares of Common Stock. The Shares may be
authorized, but unissued or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless this Plan shall have been terminated, become available for
future grant under this Plan.
4. ADMINISTRATION OF THIS PLAN.
(a) PROCEDURE.
(i) MULTIPLE ADMINISTRATIVE BODIES. If the Common Stock is not
registered under Section 12 of the Exchange Act, or if permitted by Rule 16b-3
promulgated under the Exchange Act or any successor rule thereto ("Rule 16b-3"),
this Plan may be administered by different bodies with respect to directors,
non-director officers and Employees who are neither directors nor officers.
(ii) ADMINISTRATION WITH RESPECT TO DIRECTORS AND OFFICERS. If
the Common Stock is not registered under Section 12 of the Exchange Act, then
the administration of this Plan with respect to directors and officers of the
Company shall be pursuant to Section 4(a)(iii), below. Otherwise, with respect
to grants of Options to Outside Directors and Employees who are also officers or
directors of the Company, this Plan shall be administered by (A) the Board if
the Board may administer this Plan in compliance with Rule 16b-3 with respect to
a plan intended to qualify thereunder as a discretionary plan, or (B) a
Committee designated by the Board to administer this Plan, which Committee shall
be constituted in such a manner as to permit this Plan to comply with Rule 16b-3
with respect to a plan intended to qualify thereunder as a discretionary plan.
Once appointed, 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 this Plan, all to the extent
permitted by Rule 16b-3 with respect to a plan intended to qualify thereunder as
a discretionary plan.
Page 3 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
(iii) ADMINISTRATION WITH RESPECT TO OTHER EMPLOYEES. With
respect to grants of Options to Employees who are neither directors nor officers
of the Company (or with respect to all Optionees, if the Common Stock is not
registered under Section 12 of the Exchange Act), this Plan shall be
administered by (A) the Board or (B) a Committee designated by the Board, which
Committee shall be constituted in such a manner as to satisfy the legal
requirements relating to the administration of incentive stock option plans, if
any, of applicable state corporate and securities laws and of the Code (the
"Applicable Laws"). Once appointed, 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 this Plan, all to the extent
permitted by the Applicable Laws.
(b) POWERS OF THE ADMINISTRATOR. Subject to the provisions of this
Plan and in the case of a Committee, 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 Section 2(j) of this Plan;
(ii) to select the officers, Outside Directors and Employees to
whom Options may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options are
granted hereunder;
(iv) to determine the number of shares of Common Stock to be
covered by each Option granted hereunder;
(v) to approve forms of agreement for use under this Plan;
(vi) to determine the terms and conditions, not inconsistent with
the terms of this Plan, of any Option granted hereunder (including, but not
limited to, the exercise price and any restriction or limitation, or any vesting
acceleration or waiver of forfeiture restrictions regarding any Option and/or
the shares of Common Stock relating thereto, based in each case on such factors
as the Administrator shall determine, in its sole discretion);
(vii) to determine whether and under what circumstances an
Option may be settled in cash under Section 9(f) instead of Common Stock;
(viii) to determine whether, to what extent and under what
circumstances Common Stock and other amounts payable with respect to an award
under this
Page 4 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
Plan shall be deferred either automatically or at the election of the
participant (including providing for and determining the amount, if any, of any
deemed earnings on any deferred amount during any deferral period);
(ix) to reduce the exercise price of any Option to the then
current Fair Market Value if the Fair Market Value of the Common Stock covered
by such Option shall have declined since the date the Option was granted;
(x) To prescribe, amend and rescind rules and regulations
relating to this Plan; and
(xi) To make all other determinations deemed necessary or
advisable for administering this Plan.
(c) EFFECT OF ADMINISTRATOR'S DECISION. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. ELIGIBILITY.
(a) GENERAL. Nonstatutory Stock Options may be granted to Employees
and Outside Directors. Incentive Stock Options may be granted only to
Employees. An Employee or Outside Director who has been granted an Option may,
if he or she is otherwise eligible, be granted an additional Option or Options.
(b) DESIGNATION. Each Option shall be designated in the written
Option agreement as either an Incentive Stock Option or a Nonstatutory Stock
Option. However, notwithstanding such designations, to the extent that the
aggregate Fair Market Value of the Shares with respect to which Options
designated as Incentive Stock Options are exercisable for the first time by any
Optionee during any calendar year (under all plans of the Company or any Parent
or Subsidiary) exceeds $100,000, such excess Options shall be treated as
Nonstatutory Stock Options.
(c) ORDER. For purposes of Section 5(b), Incentive Stock Options
shall be taken into account in the order in which they were granted, and the
Fair Market Value of the Shares shall be determined as of the time the Option
with respect to such Shares is granted.
(d) AT-WILL EMPLOYMENT. This Plan shall not confer upon any
Optionee any right with respect to continuation of employment with the Company
(or Parent or Subsidiary), nor shall it interfere in any way with his or her
right or the employer's right to terminate his or her employment relationship at
any time, with or without cause.
6. TERM OF PLAN. This Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the
Page 5 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
Company as described in Section 18 of this Plan. It shall continue in effect
for a term of ten (10) years unless sooner terminated under Section 14 of
this Plan.
7. TERM OF OPTION. The term of each Option shall be the term stated in
the Option agreement; provided, however, that in the case of an Incentive Stock
Option, the term shall be no more than ten (10) years from the date of grant
thereof or such shorter term as may be provided in the Option agreement; and, in
the case of an Option granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, the term of
the Option shall be five (5) years from the date of grant thereof or such
shorter term as may be provided in the Option agreement.
8. OPTION EXERCISE PRICE AND CONSIDERATION.
(a) EXERCISE PRICE. The per share exercise price for the Shares to
be issued pursuant to exercise of an Option shall be such price as is determined
by the Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of the grant of
such Incentive Stock Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant; or
(B) granted to any Employee, the per Share exercise price
shall be no less that 100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Nonstatutory Stock Option, the per Share
exercise price shall be determined by the Administrator; provided that if the
Common Stock is registered under Section 12 of the Exchange Act, then in no
event shall the per Share exercise price be less than 85% of the Fair Market
Value per Share on the date of grant.
(b) WAITING PERIOD AND EXERCISE DATES. At the time an Option is
granted, the Administrator shall fix the period within which the Option may be
exercised and shall determine any conditions which must be satisfied before the
Option may be exercised. In so doing, the Administrator may specify that an
Option may not be exercised until the completion of a service period.
(c) FORM OF CONSIDERATION. 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, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist entirely of
(1) cash, (2) check, (3)
Page 6 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
promissory note, (4) other Shares which (A) in the case of Shares acquired
upon exercise of an Option either have been owned by the Optionee for more
than six months on the date of surrender or were not acquired, directly or
indirectly, from the Company, and (B) have a Fair Market Value on the date of
surrender equal to the aggregate exercise price of the Shares as to which
said Option shall be exercised, (5) authorization for the Company to retain
from the total number of Shares as to which the Option is exercised that
number of Shares having a Fair Market Value on the date of exercise equal to
the exercise price for the total number of Shares as to which the Option is
exercised, (6) 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, (7) any
combination of the foregoing methods of payment, or (8) such other
consideration and method of payment for the issuance of Shares to the extent
permitted under applicable laws.
9. EXERCISE OF OPTION.
(a) PROCEDURE FOR EXERCISE; RIGHTS AS A SHAREHOLDER. Any Option
granted hereunder shall be exercisable according to the terms of this Plan and
at such times and under such conditions as determined by the Administrator and
set forth in the option agreement.
An Option may not be exercised for a fraction of a Share.
An Option 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 by the person entitled to exercise the Option 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, consist of any
consideration and method of payment allowable under Section 8(c) of this 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. The Company shall issue (or cause
to be issued) such stock certificate promptly upon exercise of the Option. No
adjustment shall 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 this Plan.
Exercise of an Option in any manner shall result in a decrease in
the number of Shares which thereafter may be available, both for purposes of
this Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF EMPLOYMENT OR OUTSIDE DIRECTOR RELATIONSHIP. In
the event of termination of an Optionee's Continuous Status as an Employee or
outside
Page 7 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
director relationship, such Optionee may, but only within ninety (90) days
(or such other period of time as is determined by the Administrator, with
such determination in the case of an Incentive Stock Option being made at the
time of grant of the Option and not exceeding ninety (90) days) after the
date of such termination (but in no event later than the expiration date of
the term of such Option as set forth in the Option Agreement), exercise his
Option to the extent that Optionee was entitled to exercise it at the date of
such termination. To the extent that Optionee was not entitled to exercise
the Option at the date-of such termination, or if Optionee does not exercise
such Option to the extent so entitled within the time specified herein, the
Option shall terminate.
(c) DISABILITY OF OPTIONEE. In the event of termination of an
Optionee's Continuous Status as an Employee or outside director relationship as
a result of his or her total and permanent disability (as defined in Section
22(e)(3) of the Code), Optionee may, but only within twelve (12) months from the
date of such termination (but in no event later than the expiration date of the
term of such Option as set forth in the Option agreement), exercise the Option
to the extent otherwise entitled to exercise it at the date of such termination.
To the extent that Optionee was not entitled to exercise the Option at the date
of termination, or if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
(d) DEATH OF OPTIONEE. In the event of the death of an Optionee, the
Option may be exercised, at any time within twelve (12) months following the
date of death (but in no event later than the expiration date of the term of
such Option as set forth in the Option agreement), by the Optionee's estate or
by a person who acquired the right to exercise the Option by bequest,
inheritance or designation (as described in Section 10, below), but only to the
extent the Optionee was entitled to exercise the Option at the date of death.
To the extent the Optionee was not entitled to exercise the Option at the date
of termination, or if Optionee does not exercise such Option to the extent so
entitled within the time specified herein, the Option shall terminate.
(e) BUYOUT PROVISIONS. The Administrator may at any time offer to
buy out for a payment in cash or Shares, an Option previously granted, based on
such terms and conditions as the Administrator shall establish and communicate
to the Optionee at the time that such offer is made.
10. NON-TRANSFERABILITY OF OPTION. An Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
win or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee. Notwithstanding the foregoing,
during his or her lifetime an Optionee may designate a person to exercise the
Option after the Optionee's death, which designation shall be formalized in a
written notice to the Administrator. This designation may be changed from time
to time by the Optionee by giving written notice to the Administrator revoking
any earlier designation and making a new designation.
Page 8 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
11. STOCK WITHHOLDING TO SATISFY WITHHOLDING TAX OBLIGATIONS. At the
discretion of the Administrator, Optionees may satisfy withholding obligations
as provided in this section. When an Optionee incurs tax liability in
connection with an Option, 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 by electing to have the Company withhold
from the Shares to be issued upon exercise of the Option that number of Shares
having a Fair Market Value equal to the amount required to be withheld. 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:
(a) the election must be made on or prior to the applicable Tax Date;
(b) once made, the election shall be irrevocable as to the particular
Shares of the Option as to which the election is made;
(c) all elections shall be subject to the consent or disapproval of
the Administrator;
(d) if the Optionee is subject to Rule 16b-3, the election must
comply with the applicable provisions of Rule 16b-3 and shall be subject to such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
In the event the election to have Shares withheld is made by an
Optionee and the Tax Date is deferred under Section 83 of the Code because no
election is filed under Section 83(b) of the Code, the Optionee shall receive
the full number of Shares with respect to which the Option is exercised but such
Optionee shall be unconditionally obligated to tender back to the Company the
proper number of Shares on the Tax Date.
12. ADJUSTMENTS.
(a) CHANGES IN CAPITALIZATION. Subject to any required action by the
shareholders of the Company, the number of shares of Common Stock covered by
each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under this Plan but as to which no Options have yet
been granted or which have been returned to this Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other
Page 9 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
increase or decrease in the number of issued 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 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 of Common Stock subject to an Option.
(b) DISSOLUTION OR LIQUIDATION. In the event of the proposed
dissolution or liquidation of the Company, to the extent that an Option has not
been previously exercised, the Option will terminate immediately prior to the
consummation of such proposed action. The Board may, in the exercise of its
sole discretion in such instances, declare that any Option shall terminate as of
a date fixed by the Board and give each Optionee the right to exercise his or
her Option as to all or any part of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable.
(c) MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation, or the sale of substantially all of the assets
of the Company, in which the stockholders of the Company (as constituted
immediately prior to the transaction own less than 50% of the voting securities
of the surviving, continuing or purchasing entity (or Parent, if any)
immediately following the transaction, each outstanding Option shall become
fully vested and exercisable immediately prior to the consummation of such
transaction. In such case, the Company shall notify the Optionee as soon as
practicable that the Option shall become fully vested and exercisable
immediately prior to the consummation of the transaction and the procedure for
exercising the Option. Any Option not exercised immediately prior to the
consummation of the transaction shall terminate.
13. DATE OF GRANT. The date of grant of an Option shall, for all
purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Administrator.
Notice of the determination shall be given to each Employee or Outside Director
to whom an Option is so granted within a reasonable time after the date of such
grant.
14. AMENDMENT AND TERMINATION OF THIS PLAN.
(a) AMENDMENT AND TERMINATION. The Board may at any time amend,
alter, suspend or discontinue this Plan.
(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 or with Section 422 of the Code (or any other applicable law or
regulation, including the requirements of any exchange or quotation system on
which the Common
Page 10 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
Stock is listed or quoted). Such shareholder approval, if required, shall be
obtained in such a manner and to such degree as is required by the applicable
law, rule or regulation.
(c) EFFECT OF AMENDMENT OR TERMINATION. No amendment, suspension or
termination of this Plan shall impair the rights of any Optionee, unless
mutually agreed between the Optionee and the Administrator, which agreement must
be in writing and signed by the Optionee and the Company.
15. CONDITIONS UPON ISSUANCE OF SHARES.
(a) LEGAL COMPLIANCE. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option 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 upon which the Shares may then be vested,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) INVESTMENT REPRESENTATIONS. 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 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.
16. LIABILITY OF COMPANY.
(a) INABILITY TO OBTAIN AUTHORITY. The 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 failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
(b) GRANTS EXCEEDING ALLOTTED SHARES. If the Optioned Stock covered
by an Option exceeds, as of the date of grant, the number of Shares which may be
issued under this Plan without additional shareholder approval, such Option
shall be void with respect to such excess Option Stock, unless shareholder
approval of an amendment sufficiently increasing the number of Shares subject to
the Plan is timely obtained in accordance with Section 14(b) of this Plan.
17. 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.
Page 11 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
18. SHAREHOLDER APPROVAL. Continuance of this Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before or
after the date this Plan is adopted. Such shareholder approval shall be
obtained in the degree and manner required under applicable state and federal
law.
Page 12 - APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
EXHIBIT 5.1
March 26, 1997
Apex PC Solutions, Inc.
20031 142nd Avenue, N.E.
Woodinville, WA 98072
Re: Registration on Form S-8 of Shares of Common Stock, no par value, of
Apex Solutions, Inc. (the "Company")
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Act"), which you are filing with
the Securities and Exchange Commission with respect to 1,501,744 shares of
Common Stock, no par value, of the Company (the "Common Stock") issuable under
the Apex PC Solutions, Inc. 1995 Employee Stock Plan (the "Plan"). The shares
of Common Stock issuable under or pursuant to the Plan are hereinafter
collectively referred to as the "Shares."
We have examined the Registration Statement and such documents and records
of the Company and other documents as we have deemed necessary for the purpose
of this opinion. In giving this opinion, we are assuming the authenticity of
all instruments presented to us as originals, the conformity with originals of
all instruments presented to us as copies and the genuineness of all signatures.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued pursuant to the Plan have been duly authorized and
that, upon the due execution by the Company and the registration by its
registrar of such Shares and the issuance and sale thereof by the Company in
accordance with the terms of the Plan, and the receipt of consideration therefor
in accordance with the terms of the Plan, such Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
DAVIS WRIGHT TREMAINE LLP
/s/ Davis Wright Tremaine LLP
<PAGE>
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated January 17, 1997, on our audits of the
financial statements of Apex PC Solutions, Inc., as of December 31, 1995 and
1996 and for each of the three years in the period ended December 31, 1996,
which report is included in Apex PC Solutions, Inc.'s registration statement
on Form SB-2 (SEC File No. 333-17753).
Coopers & Lybrand L.L.P.
Seattle, Washington
March 26, 1997
