<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.
EMPLOYEE STOCK PURCHASE 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 250,000 (2) $9.38 $2,345,000 $710.61
- -----------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------
</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. Employee Stock Purchase
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
2
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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 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
and incorporated herein by reference)
4.2 Amended and Restated Bylaws
4.3 Apex PC Solutions, Inc. Employee Stock Purchase 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.
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(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
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act 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 (Principal
Douglas A. Bevis 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. Employee Stock Purchase
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
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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
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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
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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
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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
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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
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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;
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(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.
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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
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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.
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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
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APEX PC SOLUTIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
Adopted by the Board of Directors on December 9, 1996,
and effective upon the consummation of an Initial Public Offering
of the Common Stock of Apex PC Solutions, Inc.
<PAGE>
Table of Contents
Page
ARTICLE I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Account. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Beneficiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.5 Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.6 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.7 Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.8 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.9 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.10 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.11 Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.12 Enrollment Date. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.13 Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.14 Participant. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.15 Payroll Deduction Authorization Form . . . . . . . . . . . . . . . 3
2.16 Plan Administrator . . . . . . . . . . . . . . . . . . . . . . . . 3
2.17 Purchase Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.18 Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.19 Share. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.20 Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.21 Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.22 Vested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Requirements for Participation . . . . . . . . . . . . . . . . . . 4
3.3 Cessation of Participation . . . . . . . . . . . . . . . . . . . . 5
3.4 Voluntary Participation. . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Payroll Deduction Authorization. . . . . . . . . . . . . . . . . . 5
4.2 Amount of Deductions . . . . . . . . . . . . . . . . . . . . . . . 5
4.3 Commencement of Deductions . . . . . . . . . . . . . . . . . . . . 5
4.4 Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.5 Modification of Authorized Deductions. . . . . . . . . . . . . . . 6
ARTICLE V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Purchase Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Purchase of Shares . . . . . . . . . . . . . . . . . . . . . . . . 6
5.3 Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.4 Fair Market Value. . . . . . . . . . . . . . . . . . . . . . . . . 6
5.5 Unused Contributions . . . . . . . . . . . . . . . . . . . . . . . 7
<PAGE>
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.1 Termination of Employment. . . . . . . . . . . . . . . . . . . . . 7
6.2 Termination upon Death, Retirement or Disability within Three
Months of Purchase Date. . . . . . . . . . . . . . . . . . . . . . 7
6.3 Designation of Beneficiary . . . . . . . . . . . . . . . . . . . . 7
6.4 Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
7.1 Source and Limitation of Shares. . . . . . . . . . . . . . . . . . 8
7.2 Delivery of Shares . . . . . . . . . . . . . . . . . . . . . . . . 8
7.3 Interest in Shares . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
9.1 Rights of the Company. . . . . . . . . . . . . . . . . . . . . . . 9
9.2 Recapitalizations. . . . . . . . . . . . . . . . . . . . . . . . . 9
9.3 Consolidation or Merger. . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
10.1 Vacation, Leave or Layoff. . . . . . . . . . . . . . . . . . . . . 9
10.2 Military Leave . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12.1 Amendment and Termination. . . . . . . . . . . . . . . . . . . . . 10
12.2 Non-Transferability. . . . . . . . . . . . . . . . . . . . . . . . 11
12.3 Limitation on Purchase . . . . . . . . . . . . . . . . . . . . . . 11
12.4 Use of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.5 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.6 No Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12.7 Registration and Qualification of Shares . . . . . . . . . . . . . 11
12.8 Plan Not a Contract of Employment. . . . . . . . . . . . . . . . . 11
12.9 Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.10 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.11 Plurals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.12 Titles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
12.13 References. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE>
APEX PC SOLUTIONS, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
The purpose of this Apex PC Solutions, Inc. Employee Stock Purchase Plan
(this "Plan") is to provide a convenient and practical means through which
employees of Apex PC Solutions, Inc. (the "Company") may participate in stock
ownership of the Company. The Company believes this Plan will be to the mutual
benefit of the employees and the Company by creating a greater community of
interest between the Company's stockholders and its employees and by permitting
the Company to compete with other companies in obtaining and retaining the
services of competent employees. The Company intends for this Plan to
constitute an "employee stock purchase plan" within the meaning of Section 423
of the Internal Revenue Code of 1986.
ARTICLE II
DEFINITIONS
The following terms, when capitalized, shall have the meanings specified
below unless the context clearly indicates to the contrary:
II.1 ACCOUNT shall mean each separate account maintained for a Participant
under this Plan, collectively or singly as the context requires. Each Account
shall be credited with a Participant's contributions. A Participant shall be
fully vested in the cash contributions to his or her Account at all times. The
Plan Administrator may create special types of Accounts for administrative
convenience or other reasons.
II.2 BENEFICIARY shall mean a person or entity entitled under Section 6.2
to receive Shares purchased by, and any remaining balance in, a Participant's
Account on the Participant's death.
II.3 BOARD shall mean the Board of Directors of the Company.
II.4 CODE shall mean the Internal Revenue Code of 1986, as amended from
time to time.
II.5 COMMITTEE shall mean the Committee, if any, appointed by the Board of
Directors in accordance with Article XIII.
II.6 COMPENSATION shall mean the total cash compensation (except as
otherwise set forth below) paid to the Employee in the period in question for
services rendered to the Employer while a Participant. Compensation shall
include the salary and wages deferred by an Employee pursuant to a salary
reduction arrangement under any cash or deferred or cafeteria plan that is
maintained by the Employer and that is intended to qualify under Sections 401(k)
or 125 of the Code. An Employee's Compensation shall not include (a) severance
pay, (b) hiring or relocation bonuses, or (c) pay in lieu of vacations or sick
leave.
II.7 COMMON STOCK shall mean the common stock, no par value, of the
Company.
<PAGE>
II.8 DISABILITY shall refer to a mental or physical impairment that is
expected to result in death or which has lasted or is expected to last for a
continuous period of twelve (12) months or more and which prevents the Employee,
in the opinion of the Company and two independent physicians, to perform his or
her duties as an employee of the Company and to engage in any substantial
gainful activity. Disability shall be deemed to have occurred on the first day
after the Company and the two independent physicians furnish their opinion of
Disability to the Plan Administrator.
II.9 EMPLOYEE shall mean an individual who renders services to his or her
Employer pursuant to a continuing, regular employment relationship. A person
rendering services to an Employer purportedly as an independent contractor or
consultant shall not be an Employee for purposes of this Plan.
II.10 EMPLOYER shall mean, both individually and collectively, the Company
and any Subsidiary, or any successor entity that continues this Plan. All
Employees of entities that constitute the Employer shall be treated as employed
by a single entity for all Plan purposes, except that:
(a) No person shall become a Participant except while employed by an
entity that is an Employer;
(b) A Participant shall cease to be a Participant if he or she
transfers to an entity that is not an Employer and ceases to be employed by an
Employer;
(c) An Employer shall cease to be an Employer for purposes of this
Plan, and a Participant who is an Employee of such an Employer shall cease to be
a Participant, upon the happening of any event, or the consummation of any
transaction, which causes the Employer to cease being an Employer, as defined
above; and
(d) Amounts paid by entities other than the Employer shall be ignored
in determining Compensation under this Plan.
In contexts in which actions are required or permitted to be taken or
notices to be given, the Employer shall mean the Company or any successor
corporation.
II.11 EMPLOYMENT shall mean the period during which an individual is an
Employee. Employment shall commence on the day the individual first performs
services for the Employer as an Employee and shall terminate on the day such
services cease as determined under Article VI.
II.12 ENROLLMENT DATE shall mean the first day of the applicable Offering.
II.13 OFFERING shall mean a period of time established by the Plan
Administrator for the accumulation of payroll deductions for the purchase of
Shares. Offerings shall be each calendar quarter, commencing with the effective
date of this Plan.
II.14 PARTICIPANT shall mean any Employee who is participating in any
Offering under this Plan pursuant to Article III.
<PAGE>
II.15 PAYROLL DEDUCTION AUTHORIZATION FORM shall mean the form provided by
the Company for eligible Employees to elect to participate by designating the
rate of his or her Compensation to be contributed to his or her Account through
payroll deductions.
II.16 PLAN ADMINISTRATOR shall mean the Board or the Committee, whichever
shall be administering the Plan from time to time in the discretion of the
Board, as described in Article VIII.
II.17 PURCHASE DATE shall mean the last day of the applicable Offering.
II.18 RETIREMENT shall mean a Participant's termination of Employment on or
after attaining the age of 65 or after the Plan Administrator has determined
that he or she has suffered a Disability.
II.19 SHARE shall mean one share of Common Stock adjusted in accordance
with Section 9.2 (if applicable).
II.20 SUBSIDIARY shall mean any corporation, association or other business
entity at least fifty percent (50%) or more of the total combined voting power
of all classes of stock of which is owned or controlled directly or indirectly
by the Company or one or more of such subsidiary entities or both.
II.21 VALUATION DATE shall mean the date upon which the fair market
value of Shares is to be determined for purposes of setting the price of
Shares under Section 5.3 (that is, the Enrollment Date or the Purchase Dates
for each Offering). If the Enrollment Date is not a date on which the fair
market value may be determined in accordance with Section 5.3, the Valuation
Date shall be the first day after the Enrollment Date for which such fair
market value may be determined. If the Purchase Date is not a date on which
the fair market value may be determined in accordance with Section 5.3, the
Valuation Date shall be the first date prior to the Purchase Date on which
such fair market value may be determined.
II.22 VESTED shall mean non-forfeitable.
ARTICLE III
EMPLOYEE PARTICIPATION
III.1 PARTICIPATION. Subject to the provisions of this Article III, an
Employee may elect to participate in this Plan, effective as of any Enrollment
Date, by completing and filing a Payroll Deduction Authorization Form as
provided in Section 4.1.
III.2 REQUIREMENTS FOR PARTICIPATION.
(a) An Employee shall be eligible to participate in this Plan on the
first Enrollment Date on which he or she first meets all of the following
requirements:
(i) The Employee's customary period of Employment is for more
than twenty (20) hours per week; and
<PAGE>
(ii) The Employee's customary period of Employment is for more
than five (5) months in any calendar year.
(b) Employees who are also directors or officers of the Company may
participate only in accordance with section 16(b) of the Securities Exchange Act
of 1934, as amended, particularly Rule 16b-3 issued thereunder, as in effect
from time to time.
(c) Any eligible Employee may enroll or re-enroll in this Plan as of
the first trading day of any Offering by filing timely written notice of such
participation, subject to the following provisions:
(i) In order to enroll in this Plan initially, an eligible
employee must complete, sign and submit to the Company a Payroll Deduction
Authorization Form. Any Payroll Deduction Authorization Form received by
the Company before the 15th day of the month preceding an Enrollment Date,
or such other deadline established by the Plan Administrator from time to
time, will be effective on that Enrollment Date.
(ii) Absent withdrawal from this Plan pursuant to Section 6.4, a
Participant will automatically be re-enrolled in this Plan on the next
Enrollment Date immediately following the Offering of which he or she is
then a Participant.
(d) A Participant shall become ineligible to participate in this Plan
and shall cease to be a Participant when any of the following occurs:
(i) His or her Employment terminates;
(ii) He or she owns Shares possessing five percent (5%) or more
of the combined voting power or value of all classes of stock of the
Company or a parent or Subsidiary of the Company. For purposes of
determining share ownership, the rules of Section 424(d) of the Code shall
apply and Shares that the Employee may purchase under any Vested options or
rights to purchase shall be treated as Shares owned by the Employee; or
(iii) Upon the happening of any event or the consummation of
any transaction which causes the entity of which the Participant is an
Employee to cease being an Employer as defined in Section 2.10.
(e) A Participant shall cease to be a Participant, but shall be
eligible to participate in this Plan with respect to any subsequent Offering, if
he or she notifies the Company in writing of his or her desire to withdraw from
participation in this Plan.
III.3 CESSATION OF PARTICIPATION. A Participant whose participation has
ceased in accordance with Sections 3.2(d) and (e) shall have the rights provided
in Article VI.
III.4 VOLUNTARY PARTICIPATION. Participation in this Plan shall be
voluntary.
<PAGE>
ARTICLE IV
PAYROLL DEDUCTIONS
IV.1 PAYROLL DEDUCTION AUTHORIZATION. An Employee may contribute to this
Plan only by means of payroll deductions. Other than as set forth in Section
3.2(c)(ii), a Payroll Deduction Authorization Form must be filed with the
enrolling individual's payroll office no later than the fifteenth (15th) day of
the month prior to the Enrollment Date as of which the payroll deductions are to
take effect.
IV.2 AMOUNT OF DEDUCTIONS. A Participant may specify the rate at which he
or she desires to contribute to this Plan, which rate shall not be less than one
percent (1%) and not more than ten percent (10%) of the Participant's
Compensation during each pay period in the Offering. For administrative
convenience, the Company may round off Participant contributions to an even
dollar amount, such as the nearest $5.00 increment. A Participant's particular
election shall apply during any period of continuous participation in the Plan,
unless modified or discontinued as provided in Section 4.5 or as otherwise
provided in this Plan. If a payroll deduction cannot be made in whole or in
part because the Participant's pay for the period in question is insufficient to
fund the deduction after having first withheld all other amounts deductible from
his or her pay, the amount that was not withheld cannot be made up by the
Participant nor will it be withheld from subsequent pay checks.
IV.3 COMMENCEMENT OF DEDUCTIONS. Payroll deductions for a Participant
shall commence on the Enrollment Date of the Offering for which his or her
Payroll Deduction Authorization Form is effective and shall continue for future
Offerings, unless modified or discontinued as provided in Section 4.5 or as
otherwise provided in this Plan.
IV.4 ACCOUNTS. All payroll deductions made for a Participant shall be
credited to his or her Account.
IV.5 MODIFICATION OF AUTHORIZED DEDUCTIONS.
(a) A Participant may at any time discontinue his or her payroll
deductions, effective for all subsequent payroll periods, by completing an
amended Payroll Deduction Authorization Form and filing it with his or her
payroll office. At such time, the Participant may elect to retain previous
payroll deductions in his or her Account and continue participation in this Plan
for subsequent offering or to withdraw from this Plan pursuant to Section 6.4.
(b) For purposes of this Section 4.5, an amended Payroll Deduction
Authorization Form shall be effective for a specific pay period when filed 15
days prior to the start of such period.
ARTICLE V
PURCHASES OF SHARES
V.1 PURCHASE DATE. Unless a Participant terminates participation, as
described in Section 4.5(b), or gives written notice to the Company as provided
in Section 6.4, the Company shall purchase, as of the Purchase Date, the number
of Shares determined pursuant to this Article V.
<PAGE>
V.2 PURCHASE OF SHARES. On each Purchase Date, the Company shall, subject
to the limitations of Article VI, apply the amount credited to each
Participant's Account to the purchase of as many full Shares that may be
purchased with such amount at the price set forth in Section 5.3, and shall
issue such Shares to the Participant. Payment for Shares purchased under this
Plan will be made only through payroll withholding in accordance with
Article IV.
V.3 PRICE. The price of Shares to be purchased under Section 5.2 shall be
the lower of:
(a) Eighty-five percent (85%) of the fair market value of the Shares
on the Enrollment Date of the Offering; or
(b) Eighty-five percent (85%) of the fair market value of the Shares
on any Purchase Date of the Offering.
V.4 FAIR MARKET VALUE.
(a) The fair market value of the Shares on any date shall be equal to
the bid price of the Company's Common Stock at the close of business on the
Valuation Date, as reported on the automated quotation system of the NASD or
such other quotation system that supersedes it.
(b) If (a) is not applicable, the fair market value of the Shares
shall be determined by the Plan Administrator in good faith. Such determination
shall be conclusive and binding on all persons.
V.5 UNUSED CONTRIBUTIONS.
(a) Subject to the limitations of Sections 3.2(e) and 12.3, a
Participant may withdraw from any Offering and apply any or all amounts then
credited to his or her Account to the Offering commencing on the next occurring
Enrollment Date following such withdrawal by re-enrolling in such subsequent
Offering pursuant to Section 3.2(c)(ii).
(b) Provided that a Participant's Employment with the Company has not
terminated and the Participant has not withdrawn from the Plan pursuant to
Article VI, and subject to Section 7.1(b), any amount credited to a
Participant's Account and remaining therein immediately after a Purchase Date
shall be carried forward in such Participant's Account for application on the
next succeeding Purchase Date, subject to the notice provisions of Section 5.1.
ARTICLE VI
TERMINATION AND WITHDRAWAL
VI.1 TERMINATION OF EMPLOYMENT. Upon termination of a Participant's
Employment for any reason other than as set forth in Section 6.2, the payroll
deductions credited to such Participant's Account shall be returned to the
Participant. Except as provided in Section 6.2, a Participant shall have no
right under this Plan to acquire Shares upon or after termination of his or her
Employment.
<PAGE>
VI.2 TERMINATION UPON DEATH, RETIREMENT OR DISABILITY WITHIN THREE MONTHS
OF PURCHASE DATE. Upon termination of the Participant's Employment within the
three-month period preceding a Purchase Date because of his or her death,
Retirement or Disability, the payroll deductions credited to his or her Account
shall be used to purchase Shares as provided in Article V on the next Purchase
Date. Any remaining balance in the Participant's Account shall be returned to
him or her or, in the case of death, any Shares purchased and any remaining
balance shall be transferred to the deceased Participant's Beneficiary, or if
none, to his or her estate.
VI.3 DESIGNATION OF BENEFICIARY. Each Participant may designate, revoke
and redesignate Beneficiaries. This action shall be taken in writing on a form
provided by the Plan Administrator and shall be effective upon delivery of the
election to the Plan Administrator.
VI.4 WITHDRAWAL. A Participant whose Employment with the Company is
continuing (i.e., has not been terminated as described in Sections 6.1 and 6.2)
may elect to withdraw the entire amount credited to his or her Account and cease
further participation at any time by giving written notice to the Company at
least 15 days prior to the next Purchase Date. The amount withdrawn shall be
paid to the Participant promptly after receipt of proper notice of withdrawal
and no further payroll deductions shall be made from his or her compensation
unless and until a new Payroll Deduction Authorization Form is submitted in
accordance with Section 4.1.
ARTICLE VII
SHARES PURCHASED UNDER THE PLAN
VII.1 SOURCE AND LIMITATION OF SHARES.
(a) The Company has reserved for sale under this Plan
shares of its Common Stock, subject to adjustment upon changes in Capitalization
of the Company as provided in Section 9.2. Shares sold under this Plan may be
newly issued Shares or Shares reacquired in private transactions or open market
purchases, but all Shares sold under this Plan regardless of source shall be
counted against the share limitation.
(b) If there is an insufficient number of Shares to permit the full
exercise of all existing rights to purchase Shares, or if the legal obligations
of the Company prohibit the issuance of all Shares purchasable upon the full
exercise of such rights, the Plan Administrator shall make a pro rata allocation
of the Shares remaining available in as nearly a uniform and equitable manner as
possible, based pro rata on the aggregate amounts then credited to each
Participant's Account. In such event, payroll deductions to be made shall be
reduced accordingly and the Plan Administrator shall give written notice of such
reduction to each Participant affected thereby. Any amount remaining in a
Participant's Account immediately after all available Shares have been purchased
will be promptly remitted to such Participant. Determination by the Plan
Administrator in this regard shall be final, binding and conclusive on all
persons. No deductions shall be permitted under this Plan at any time when no
Shares are available.
VII.2 DELIVERY OF SHARES. As promptly as practicable after the Purchase
Date, the Company shall deliver to the Participant the full Shares purchased
with his or her payroll deductions.
VII.3 INTEREST IN SHARES. The rights to purchase Shares granted pursuant to
this Plan will in all respects be subject to the terms and conditions of this
Plan, as interpreted by the Plan Administrator from time to time. The
Participant shall have no interest in Shares purchasable
<PAGE>
under this Plan until payment for the Shares has been completed at the close
of business on the relevant Purchase Date. This Plan provides only an
unfunded, unsecured promise by the Employer to pay money or property in the
future. Except with respect to the Shares purchased on a Purchase Date, an
Employee choosing to participate in this Plan shall have no greater rights
than an unsecured creditor of the Company. After the purchase of the Shares,
the Participant shall be entitled to all rights of a stockholder of the
Company.
ARTICLE VIII
PLAN ADMINISTRATION
This Plan shall be administered by the Board of Directors, who shall be
vested with full authority to make, administer and interpret all rules and
regulations applicable to this Plan as it deems necessary for purposes of
administering this Plan. This Plan is intended to qualify for the "Stock
Purchase Plan" exemption of Rule 16b-3 of the regulations promulgated under the
Securities Exchange Act. Any determination, decision or action of the Plan
Administrator with respect to the construction, interpretation, administration
or application of this Plan shall be final, conclusive and binding upon all
Participants and any and all persons claiming benefits under this Plan. The
provisions of this Plan shall also be construed so as to extend and limit
participation in a manner consistent with the requirements of Section 423 of the
Code.
ARTICLE IX
CHANGES IN CAPITALIZATION, MERGER, ETC.
IX.1 RIGHTS OF THE COMPANY. The grant of a right to purchase Shares
pursuant to this Plan shall not affect in any way the right or power of the
Company to make adjustments, reclassifications, reorganizations or other changes
of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or transfer all or any part of its divisions, subsidiaries,
business or assets.
IX.2 RECAPITALIZATIONS. Subject to any required action by the
stockholders, the number of Shares covered by this Plan as provided in Section
7.1 and the price per share shall be proportionately adjusted for any increase
or decrease in the number of issued Shares of the Company resulting from a
subdivision or consolidation of Shares or the payment of a stock dividend (but
only on the Shares) or any other increase or decrease in the number of such
Shares affected without receipt of consideration by the Company.
IX.3 CONSOLIDATION OR MERGER. In the event of the consolidation or merger
of the Employer with or into any other business entity, or the sale by the
Employer of substantially all of its assets, the successor may continue this
Plan by adopting the same by resolution of its board of directors or agreement
of its partners or proprietors. If, within 90 days after the effective date of
a consolidation, merger or sale of assets, the successor corporation,
partnership or proprietorship does not adopt this Plan, this Plan shall be
terminated in accordance with Section 11.1.
<PAGE>
ARTICLE X
TERMINATION OF EMPLOYMENT
X.1 VACATION, LEAVE OR LAYOFF. A person's Employment shall not terminate
on account of an authorized leave of absence, sick leave or vacation, or on
account of a military leave described in Section 10.2, or a direct transfer
between Employers. Failure to return to work upon expiration of any leave of
absence, sick leave or vacation shall be considered a resignation effective as
of the expiration of such leave of absence, sick leave or vacation.
X.2 MILITARY LEAVE. Any Employee who leaves the Employer directly to
perform services in the Armed Forces of the United States or in the United
States Public Health Service under conditions entitling the Employee to
re-employment rights provided by the laws of the United States, shall be on
military leave. An Employee's military leave shall expire if the Employee
voluntarily resigns from the Employer during the leave or if he or she fails
to make application for re-employment within the period specified by such law
for the preservation of employment rights. In such event, the individual's
employment shall terminate by resignation on the day the military leave
expires.
ARTICLE XI
STOCKHOLDER APPROVAL
This Plan is expressly made subject to the approval of the holders of a
majority of the outstanding shares of the Company within 12 months after the
date this Plan is adopted. If this Plan is not so approved by the stockholders
within 12 months after the date this Plan is adopted, this Plan shall not come
into effect. Notwithstanding any other provision of this Plan to the contrary,
no Shares shall actually be issued under this Plan until there has been approval
of this Plan by a majority of the Company's shareholders, as described in this
Article XI. In the event that this Plan becomes effective prior to such
shareholder approval, the Plan Administrator shall record the participation of
each Participant, including the amounts in each Participant's Account and the
number of Shares that each Participant is entitled to purchase, and the
corresponding applicable purchase price, at each Purchase Date, but no actual
purchase and issuance of Shares shall take place prior to shareholder approval.
If shareholder approval is not obtained, as described in this Article XI, then
all amounts held by this Plan under the Participants' Account shall be returned
to the Participants, and this Plan shall be become null and void.
ARTICLE XII
MISCELLANEOUS PROVISIONS
XII.1 AMENDMENT AND TERMINATION.
(a) The Board of Directors of the Company may at any time amend this
Plan. An amendment shall require the approval of the Stockholders of the
Company if the amendment would permit the sale of more Shares than are
authorized under Section 7.1, or the amendment otherwise requires shareholder
approval under Section 423 of the Code or Rule 16b of the Securities Exchange
Act.
<PAGE>
(b) This Plan is intended to be a permanent program, but an Employer
shall have the right at any time to declare this Plan terminated completely as
to it or as to any of the Employer's divisions, facilities, operational units or
job classifications. Upon such termination, amounts credited to the Accounts of
Participants with respect to whom the Plan has been terminated shall be returned
to such Participants.
XII.2 NON-TRANSFERABILITY. Neither payroll deductions credited to a
Participant's Account nor any rights with regard to the purchase of Shares under
this Plan may be assigned, transferred, pledged or otherwise disposed of in any
way by the Participant except as provided in Section 6.2, and any attempted
assignment, transfer, pledge, or other disposition shall be null and void. The
Company may treat any such act as an election to withdraw funds in accordance
with Section 6.4.
XII.3 LIMITATION ON PURCHASE. No Participant may obtain a right to purchase
Shares under this Plan if such right would, upon immediate exercise for shares,
result in that Participant:
(a) owning stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company or its
Subsidiaries; or
(b) obtain rights to purchase stock under this Plan or under any
other employee stock purchase plan of the Company or any of its Subsidiaries or
its parents that will accrue at a rate which exceeds $25,000 in fair market
value (determined as of the Enrollment Date) of the stock for each calendar year
in which he or she is a Participant;
both as determined under Section 423(b) of the Code.
XII.4 USE OF FUNDS. All payroll deductions received or held by the Company
under this Plan may be used by the Company for any corporate purposes and the
Company shall not be obligated to segregate the payroll deductions.
XII.5 EXPENSES. All expenses of administering this Plan shall be borne by
the Company and its Subsidiaries.
XII.6 NO INTEREST. No Participant shall be entitled, at any time, to any
payment or credit for interest with respect to or on the payroll deductions
contemplated herein, or on any other assets held hereunder for the Participant's
Account.
XII.7 REGISTRATION AND QUALIFICATION OF SHARES. The offering of the
Shares hereunder shall be subject to the effecting by the Company of any
registration or qualification of the Shares under any federal or state law or
the obtaining of the consent or approval of any governmental regulatory body
which the Company shall determine, in its sole discretion, is necessary or
desirable as a condition to, or in connection with, the offering or the issue
or purchase of the Shares covered thereby. The Company shall make every
reasonable effort to effect such registration or qualification or to obtain
such consent or approval.
XII.8 PLAN NOT A CONTRACT OF EMPLOYMENT. This Plan is strictly a voluntary
undertaking on the part of the Employer and shall not constitute a contract
between the Employer and any Employee, or consideration for an inducement or a
condition of, the employment of an Employee. Except as otherwise required by
law or any applicable collective bargaining agreement, nothing contained in this
Plan shall give any Employee the right to be retained in the service of the
<PAGE>
Employer or to interfere with or restrict the right of the Employer, which is
hereby expressly reserved, to discharge or retire any Employee at any time, with
or without cause and with or without notice. Except as otherwise required by
law, inclusion under this Plan will not give any Employee any right or claim to
any benefit hereunder except to the extent such right has specifically become
fixed under the terms of the Plan. The doctrine of substantial performance
shall have no application to any Employee, Participant or Beneficiary. Each
condition and provision, including numerical items, has been carefully
considered and constitutes the minimum limit on performance which will give rise
to the applicable right.
XII.9 NOTICE. All notices or other communications by a Participant to the
Company under or in connection with this Plan shall be deemed to have been duly
given when received by the Plan Administrator. Any notice required by this Plan
to be received by the Company prior to an Enrollment Date, payroll period or
other specified date, and received by the Plan Administrator subsequent to such
date, shall be effective on the next occurring Enrollment Date, payroll period
or other specified date to which such notice applies.
XII.10 GOVERNING LAW. This Plan shall be interpreted, administered and
enforced in accordance with the Code, and the rights of Participants, former
Participants, Beneficiaries and all other persons shall be determined in
accordance with it. To the extent that state law is applicable, however, the
laws of the State of Washington shall apply.
XII.11 PLURALS. Where the context so indicates, the singular shall include
the plural and vice versa.
XII.12 TITLES. Titles of Articles and Sections are provided herein for
convenience only and are not to serve as the basis for interpretation or
construction of this Plan.
XII.13 REFERENCES. Unless the context clearly indicates to the contrary,
reference to a Plan provision, statute, regulation or document shall be
construed as referring to any subsequently enacted, adopted or executed
counterpart.
ADOPTED BY THE BOARD OF DIRECTORS ON DECEMBER 9, 1996,
AND EFFECTIVE UPON THE CONSUMMATION OF AN INITIAL
PUBLIC OFFERING OF THE COMPANY'S COMMON STOCK
<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 250,000 shares of Common
Stock, no par value, of the Company (the "Common Stock") issuable under the Apex
PC Solutions, Inc. Employee Stock Purchase 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
