FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the "Amendment") is being
entered into this ____ day of December, 1996, by and between and between APEX PC
SOLUTIONS, INC., a Washington corporation (the "Company"), and XXXXX X. XXXXX
(the "Employee").
RECITALS
A. Pursuant to an Employment Agreement dated December 29, 1995 (the
"Employment Agreement"), Employee was awarded a restricted stock bonus of
200,000 shares of the Company's Series B Redeemable Preferred Stock to vest on
the earlier of (i) the closing of a Qualified Public Offering as defined in the
Company's Restated Articles of Incorporation under certain conditions or (ii) on
the fifth and sixth anniversaries of the original issue date of the Series B
Redeemable Preferred Stock.
B. The Company now wishes to accelerate the vesting of Employee's Series
B Redeemable Preferred Stock in consideration for Employee's services to the
Company as President and Chief Executive Officer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Amendment, the Company and Employee agree as follows:
1. ACCELERATION OF RESTRICTED STOCK BONUS. Section 1.3(c) of the
Employment Agreement is hereby amended by deleting the existing provision and
substituting the following new provision:
(c) STOCK BONUS. Employee shall receive a stock bonus
for the number of shares of the Company's Series B
Redeemable Preferred Stock as set forth on the Benefit
Schedule; PROVIDED, HOWEVER, that Employee shall have no
immediate right, title or interest in or to such shares of
Series B Redeemable Preferred Stock, which shall vest only
as follows:
(i) All such shares of the Company's Series B Redeemable
Preferred Stock shall vest on January 1, 1997, if Employee is
still employed by the Company, and the Company hereby agrees to
redeem 80,000 of such shares at the purchase price of $5.00 per
share on January 1, 1997 (and, in connection with the redemption
of such 80,000 shares, Employee hereby authorizes the Company to
withhold any or all of the redemption proceeds otherwise due to
Employee and to pay over to the
Internal Revenue Service or other taxing authorities such amount
in fulfillment of Employee's withholding obligation resulting
from such vesting) and to redeem all remaining shares held by
Employee at $5.00 per share on the earlier of the closing of a
Qualified Public Offering as defined in the Company's Restated
Articles of Incorporation, or if no such Qualified Public
Offering has occurred, to redeem 60,000 shares at $5.00 per share
on each of the fifth and sixth anniversaries of the original
issue date of the Series B Redeemable Preferred Stock; or
(ii) If Employee was previously terminated for
Cause under Section 1.7(e) of the Employment Agreement,
at the time of the redemption of the Series B
Redeemable Preferred Stock pursuant to Section 5(b) of
Article III of the Company's Restated Articles of
Incorporation (including, without limitation, a
redemption upon the closing of a Qualified Public
Offering as defined in the Company's Restated Articles
of Incorporation or a redemption on the fifth and sixth
anniversary of the original issue date of the Series B
Redeemable Preferred Stock), and in such event only if,
as, and to the extent that Employee's shares of Series
B Redeemable Preferred Stock are actually redeemed for
cash, AND, PROVIDED, FURTHER, that in the event
Employee's shares of the Company's Series B Redeemable
Preferred Stock are redeemed for cash only in part,
Employee shall vest only in the number of shares of
Series B Redeemable Preferred Stock calculated by
multiplying 200,000 by a fraction, the numerator of
which is the amount of the cash proceeds paid to
Employee in the redemption (other than amounts paid in
the redemption for accrued and unpaid dividends on the
Series B Redeemable Preferred Stock), and the
denominator of which is One Million Dollars
($1,000,000).
All certificates for such shares of the Company's Series B Redeemable
Preferred Stock shall contain the following legend:
The shares represented by this certificate have not vested
and are subject to forfeiture under the terms and conditions
set forth in the Employment Agreement dated December 29,
1995, between Xxxxx Xxxxx and the corporation. A copy of
the Employment Agreement is on file at the corporation's
principal place of business and it registered office.
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2. LIFE INSURANCE. Section 1.3(e) of the Employment Agreement is hereby
amended by deleting the existing provision and substituting the following new
provision:
(e) LIFE INSURANCE. The Company agrees to purchase
and maintain on Employee's life a One Million Dollar
($1,000,000) life insurance policy payable to Employee's
wife or estate (or as otherwise directed by Employee) for so
long as Employee is employed by the Company until such time
as all of the shares of Series B Redeemable Preferred Stock
have been purchased and redeemed by the Company from
Employee.
3. REMAINING TERMS UNCHANGED. The remaining terms and conditions of the
Employment Agreement remain unchanged and in full force and effect.
APEX PC SOLUTIONS, INC.
By /s/
----------------------------------
Its
----------------------------
/s/
-------------------------------------
XXXXX X. XXXXX
CONSENT OF TA PARTNERSHIPS
Each of the undersigned hereby consents to the vesting and redemption
described above and waives the provisions of Section III.B.6(a)(i) of the
Company's Restated Articles of Incorporation (relating to certain redemptions of
stock) and Section 5(c) of those certain Class A Subordinated Promissory Notes
dated December 29, 1995 (relating to incurring debt).
ADVENT VII L.P.
By: TA Associates VII L.P., its General Partner
By: TA Associates, Inc., its General Partner
By /s/
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
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ADVENT ATLANTIC AND PACIFIC II L.P.
By: TA Associates AAP II Partners, its General Partner
By: TA Associates, Inc., its General Partner
By /s/
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
ADVENT NEW YORK L.P.
By: TA Associates VI L.P., its General Partner
By: TA Associates, Inc., its General Partner
By /s/
--------------------------------------
Xxxxxxx X. Xxxxxxxx, Managing Director
TA VENTURE INVESTORS LIMITED PARTNERSHIP
By /s/
--------------------------------------------
Xxxxxxx X. Xxxxxxxx, General Partner
CONSENT OF BRITANNIA HOLDINGS LIMITED
The undersigned hereby consents to the vesting and redemption described
above and waives the provisions of Section 5(c) of that certain Class B
Subordinated Promissory Note dated December 29, 1995 (relating to incurring
debt).
BRITANNIA HOLDINGS LIMITED
By /s/
--------------------------------------------
Its Director
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