<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO 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 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:
ERIC DeJONG, ESQ.
DAVIS WRIGHT TREMAINE LLP
2600 CENTURY SQUARE
1501 FOURTH AVENUE
SEATTLE, WA 98101-1688
(206) 622-3150
----------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- - ------------------------------------------------------------------------------
- - ------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- - ------------------------------------------------------------------------------
TITLE OF PROPOSED PROPOSED
EACH CLASS MAXIMUM MAXIMUM
OF SECURITIES AMOUNT TO OFFERING AGGREGATE
TO BE BE PRICE PER OFFERING AMOUNT OF
REGISTERED REGISTERED UNIT (1) PRICE (1) REGISTRATION FEE
- - ------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,500,000 (2) $27.5625 $41,343,750 $12,196.41
no par value
- - ------------------------------------------------------------------------------
</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 $27.5625 based
on the average of the high ($28.75) and low ($26.375) sales prices for the
Common Stock on July 1, 1998, 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 Plan as the result
of any future stock split, stock dividend or similar adjustment of the
outstanding Common Stock of the Registrant.
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement filed by Apex PC Solutions, Inc. (the "Company") under
Registration Statement Number 333-24011, with respect to securities offered
pursuant to the Company's Employee Stock Plan (the "Plan"), are hereby
incorporated by reference herein, and the opinions and consents listed below are
attached hereto as exhibits:
<TABLE>
<CAPTION>
Exhibit Number Description
- - -------------- -----------
<S> <C>
4.3.1 Apex PC Solutions, Inc. 1995 Employee Stock Plan
(Incorporated by reference to the Company's registration
statement on Form S-8 (Registration No. 333-24011))
4.3.2 Amendment to 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 PricewaterhouseCoopers LLP
</TABLE>
2
<PAGE>
<TABLE>
<S> <C>
23.2 Consent of Davis Wright Tremaine LLP (included in opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
</TABLE>
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 post-
effective amendment to its registration statement on Form S-8 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Woodinville, State of Washington, on July 6, 1998.
APEX PC SOLUTIONS, INC.
-------------------------------------
Kevin J. Hafer
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose name appears below, with the exception of Franz Fichtner,
in the Registration Statement on Form S-8 (Registration No. 333-24011) (the
"Registration Statement") filed by the Company, previously constituted and
appointed Kevin J. Hafer and Douglas A. Bevis, jointly and separately, as
attorney-in-fact to sign any amendments to the Registration Statement, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, thereby ratifying and
confirming all that said attorney-in-fact, or his substitute or substitutes, may
do or cause to be done by virtue thereof.
Franz Fichtner, whose signature appears below, hereby constitutes and
appoints Kevin J. Hafer as attorney-in-fact, with full power of substitution,
for himself and in any and all capacities, to sign any amendments to the
Registration Statement, as amended, 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 said attorney-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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
President, Chief Executive July 6, 1998
- - ----------------------------- Officer and Director
Kevin J. Hafer (Principal Executive Officer)
Vice President and Chief July 6, 1998
- - ----------------------------- Financial Officer (Principal
Douglas A. Bevis Financial and Accounting Officer)
</TABLE>
3
<PAGE>
<TABLE>
<S> <C> <C>
* Director July 6, 1998
- - ----------------------------
Jeffrey T. Chambers
* Director July 6, 1998
- - ----------------------------
Sterling Crum
* Director July 6, 1998
- - ----------------------------
Franz Fichtner
* Director July 6, 1998
- - ----------------------------
Edwin L. Harper
* Director July 6, 1998
- - ----------------------------
William McAleer
*By: -----------------------
Kevin J. Hafer
Attorney-in-fact
</TABLE>
4
<PAGE>
EXHIBIT 4.3.1
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
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(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.
(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
Page 3 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
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 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);
Page 4 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
(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 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
Page 5 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
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) 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
Page 6 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
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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 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.
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(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.
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").
Page 8 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
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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 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,
Page 9 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
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 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
Page 10 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
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.
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 11 -- APEX PC SOLUTIONS INC. 1995 EMPLOYEE STOCK PLAN
<PAGE>
EXHIBIT 4.3.2
AMENDMENT TO
APEX PC SOLUTIONS, INC.
1995 EMPLOYEE STOCK PLAN
This Amendment to the Apex PC Solutions, Inc. (the "Company") 1995 Employee
Stock Plan is made as of May 7, 1998.
WHEREAS, the Company established the Apex PC Solutions, Inc. 1995 Employee
Stock Plan (the "Plan") on December 29, 1995; and
WHEREAS, under the terms of the Plan, the Company has the ability to amend
the Plan;
NOW, THEREFORE, the Company, in accordance with the terms of the Plan
pertaining to amendments, hereby amends the Plan as follows:
1. The name of the Plan is amended to be the Apex PC Solutions, Inc.
Employee Stock Plan.
2. Section 2(r) of the Plan is amended by deleting the reference to
"1995" to provide as follows:
(r) "PLAN" means this Employee Stock Plan.
3. Section 3 of the Plan is amended by increasing the maximum number of
options in the Plan and adding a limit to the number of option shares that any
recipient may receive in any fiscal year, and accordingly, the first sentence of
Section 3 is amended by deleting the existing language and substituting the
following new language:
3. STOCK SUBJECT TO THIS PLAN. Subject to the provisions of Section
12 of this Plan, (i) the maximum aggregate number of Shares which may be
optioned and sold under this Plan is 3,661,760 Shares of Common Stock and
(ii) the maximum number of Shares with respect to which Options may be
granted to any Optionee during any fiscal year of the Company is 250,000
Shares of Common Stock.
By order of the Board of Directors this 7th day of
May, 1998,
APEX PC SOLUTIONS, INC.
Samuel F. Saracino, Secretary
The allocation of 1,500,000 additional shares was approved by the Stockholders
at the Annual Meeting on June 25, 1998.
<PAGE>
EXHIBIT 5.1
July 7, 1998
Apex PC Solutions, Inc.
20031 142nd Avenue, N.E.
Woodinville, WA 98072
Re: Registration of Additional Shares of Common Stock, no par value, of
Apex PC Solutions, Inc. (the "Company") on Post-Effective Amendment
No. 1 to Form S-8
Ladies and Gentlemen:
We have acted as counsel to you in connection with the preparation of a
Post-Effective Amendment to your Form S-8 Registration Statement (Registration
No. 333-24011) (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 1,500,000 shares of Common Stock, no par
value, of the Company (the "Common Stock") issuable under the Apex PC Solutions,
Inc. 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>
EXHIBIT 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated January 24, 1998, except as to Note 11, as to
which the date was March 26, 1998, on our audits (originally signed as
Coopers & Lybrand L.L.P.) of the consolidated financial statements of Apex PC
Solutions, Inc., as of December 31, 1997 and 1996 and for each of the three
years in the period ended December 31, 1997, which report is included in Apex
PC Solutions, Inc.'s Annual Report on Form 10-KSB.
PricewaterhouseCoopers LLP
Seattle, Washington
July 7, 1998
