<PAGE> 1
As filed with the Securities and Exchange Commission on May 20, 1998
Registration No. ______
---------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933, AS AMENDED
---------------
IN FOCUS SYSTEMS, INC
(Exact name of registrant as specified in its charter)
OREGON 93-0932102
(State or other jurisdiction of (I.R.S. Employer
Identification No.) Incorporation or organization)
27700B S.W. PARKWAY AVENUE
WILSONVILLE, OREGON 97070
(Address of Principal Executive Offices) (Zip Code)
---------------
IN FOCUS SYSTEMS, INC. 1998 STOCK INCENTIVE PLAN
(Full Title of Plan)
---------------
MICHAEL D. YONKER
VICE PRESIDENT, INFORMATION SERVICES, CHIEF FINANCIAL OFFICER,
SECRETARY AND TREASURER
IN FOCUS SYSTEMS, INC.
27700B S.W. PARKWAY AVENUE
WILSONVILLE, OREGON 97070
(503) 685-8888
(Name, Address and Telephone Number of Agent for Service of Process)
---------------
If any of the securities being registered on this Form S-8 are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Maximum Aggregate
Securities to be Amount to be Offering Price Offering Amount of
Registered Registered* Per Share** Price** Fee
---------------- ------------ -------------- --------- ---------
<S> <C> <C> <C> <C>
Common Stock 1,500,000 $ 9.3125 $13,968,750 $4,121
============================================================================================
</TABLE>
* The In Focus Systems, Inc., 1998 Stock Incentive Plan (the "1998 Plan")
authorizes the issuance of a maximum of 1,500,000 shares of the common stock of
In Focus Systems, Inc. (the "Company") pursuant to the terms and conditions
thereof, all of which shares are being registered hereunder. There are also
registered, pursuant to Rule 416, such additional indeterminate number of shares
as may be issued as a result of the anti-dilution provisions of the 1998 Plan.
** Estimated solely for purposes of determining the registration fee pursuant to
Rule 457(h) under the Securities Act of 1933, as amended. The Proposed Maximum
Offering Price Per Share is the average of the high and low prices of the
Company's common stock as listed on the NASDAQ National Market System on May 14,
1998 (which were $9.4375 and $9.1875 respectively).
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company has filed all of the following documents with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), each of which is incorporated by
reference in this Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (the "1997 Annual Report");
2. Those portions of the Company's Proxy Statement on Schedule 14A,
dated March 9, 1998, that have been incorporated by reference in
the 1997 Annual Report;
3. All reports filed pursuant to Section 13(a) or Section 15(d) of
the Exchange Act since December 31, 1997; and
4. The description of the Company's Common Stock contained in the
Company's Form 8-A filed on November 13, 1990, under Section
12(g) of the Exchange Act with the Company's Registration
Statement on Form S-1 (Reg. No. 33-36460), including all
amendments and reports filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment, which indicates that the
Shares offered hereby have been sold or which deregister the Shares covered
hereby then remaining unsold, shall also be deemed to be incorporated by
reference herein and made a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference herein) modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article VI of the Company's 1990 Restated Articles of Incorporation
("Article VI") and Section 10 of the Company's 1997 Restated Bylaws ("Section
10") require the Company to indemnify its officers and directors to the fullest
extent authorized by the Oregon Business Corporation Act ("the Act"). The effect
of these provisions is summarized below but such summary is qualified in its
entirety by reference to the Act, Article VI and Section 10.
The Company must indemnify its directors and officers with respect to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, and whether formal or informal, other
than an action by or in the right of the Company (a "Proceeding"), against all
expenses, liabilities, and losses reasonably incurred (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement), if: (i) the indemnitee's conduct was in good faith; (ii) the
indemnitee reasonably believed that his conduct was in the Company's best
interests, or at least not opposed to its best interests; and (iii) with respect
to any criminal proceeding, the indemnitee had no reasonable cause to believe
his conduct was unlawful. The Company may not indemnify an officer or director
in connection with a Proceeding in which such person is adjudged liable to the
Company or in which such person is adjudged liable on the basis of having
improperly received a personal benefit, unless a court permits indemnification
based upon a finding that such person is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances.
The Company must also indemnify its officers and directors in connection
with a Proceeding by or in the right of the Company against all expenses
(including attorneys' fees) actually and reasonably incurred if the indemnitee
acted in good faith and in a manner reasonably believed to be in, or at least
not opposed to, the Company's best interests. The Company may not indemnify an
officer or director in connection with any such Proceeding if such person is
adjudged liable to the Company or if such person is adjudged liable on the basis
that he improperly received a personal benefit, unless a court permits
indemnification based upon a finding that such person is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances.
Termination of a Proceeding by judgment, order, settlement, conviction
or upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that an officer or director did not meet the standard of conduct
described above. If wholly successful on the merits of a Proceeding, an officer
or director is entitled to indemnification as a matter of right. Because the
limits of indemnification under Oregon law are not clearly defined, Article VI
and Section 10 may provide for indemnification broader than that described
herein.
Section 10 provides that all indemnification rights described therein
shall be deemed to be contractual rights and shall be effective to the same
extent as, and as if provided for, in contracts between the Company and its
individual directors and officers. Section 10 further provides that, if
requested in writing, the Company shall pay the expenses incurred by any officer
or director in connection with any Proceeding in advance of its final
disposition, provided that such person furnishes the Company with: (i) a written
affirmation of his good faith belief that he is entitled to indemnification; and
(ii) a written undertaking to repay advanced amounts to the extent that a court
determines that he is not entitled to indemnification. Section 10 explicitly
authorizes any person claiming a right to indemnification to sue the Company for
payment, and the Company will have the burden of proving that the claimant
failed to meet the standards of conduct making indemnification permissible. If
the person claiming a right indemnification is successful in whole or in part in
such a suit (or in a suit brought by the Company to recover an advancement of
expenses), the person claiming such right to indemnification shall also be
entitled to be paid the expense of prosecuting (or defending) such a suit.
Section 10 also provides that the Company may maintain insurance to
protect itself and its directors, officers, employees or agents against any
expense, liability or loss whether or not the Company has the power to indemnify
such person against such expense, liability or loss under Oregon law. The
Company currently has liability insurance to indemnify its directors and
officers against expense, liability or loss arising from claims by reason of
their acts or omissions as directors and officers.
The rights of indemnification described above are not exclusive of any
other indemnification rights to which the persons indemnified may be entitled
under any agreement, statute, vote of shareholders, action of directors or
otherwise.
3
<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith:
No. Description
- --- -----------
4.1 In Focus Systems, Inc. 1998 Stock Incentive Plan.
4.1.1 Form of Incentive Stock Option Agreement under the In Focus
Systems, Inc. 1998 Stock Incentive Plan
4.1.2 Form of Nonstatutory Stock Option Agreement under the In Focus
Systems, Inc. 1998 Stock Incentive Plan.
4.1.3 Form of Executive Stock Option Agreement under the In Focus
Systems, Inc. 1998 Stock Incentive Plan.
4.1.4 Form of Executive Nonstatutory Stock option Agreement under the
In Focus Systems, Inc. 1998 Stock Incentive Plan.
4.1.5 Form of Restricted Stock Agreement under the In Focus Systems,
Inc. 1998 Stock Incentive Plan.
5 Opinion of Counsel.
23.1 Consent of Certified Independent Public Accountants.
23.2 Consent of Counsel (included in opinion of counsel filed as
Exhibit 5 herewith).
24.1 Power of Attorney for Peter D. Behrendt.
24.2 Power of Attorney for Michael R. Hallman.
24.3 Power of Attorney for Nobuo Mii.
ITEM 9. UNDERTAKINGS.
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or most recent post-effective amendment hereof) which
individually or in the aggregate, represent a fundamental change
in the information set forth in this Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information
in this Registration Statement.
provided, however, that paragraphs (1)(i) and (1)(ii) shall not
apply if the information required to
4
<PAGE> 5
be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant
to Sections 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, to treat each such post-effective amendment as a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time to be the initial bona fide
offering thereof.
(3) To remove from registration, by means of a post-effective
amendment, any of the securities being registered which remain unsold at
the termination of the offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Sections 13(a) or 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
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 an 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 Company, the Company 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Form S-8 Registration Statement and has
duly caused this Form S-8 Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Wilsonville, State of
Oregon on May 20, 1998.
Registrant: IN FOCUS SYSTEMS, INC.
By: /s/ John V. Harker
----------------------------------------
John V. Harker
Chairman of the Board, President and
Chief Executive Officer
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.
Principal Executive Officer:
By: /s/ John V. Harker Date: May 20, 1998
--------------------------------------
John V. Harker
Chairman of the Board, President and
Chief Executive Officer
5
<PAGE> 6
Principal Financial Officer:
By: /s/ Michael D. Yonker Date: May 20, 1998
---------------------------------
Michael D. Yonker
Vice President, Information Services,
Chief Financial Officer, Treasurer, and
Secretary
Majority of the Board of Directors:
/s/ John V. Harker Date: May 20, 1998
- ------------------------------------
John V. Harker, Director
/s/ Peter D. Behrendt * Date: May 20, 1998
- ------------------------------------
Peter D. Behrendt, Director
/s/ Michael R. Hallman * Date: May 20, 1998
- ------------------------------------
Michael R. Hallman, Director
/s/ Nobuo Mii * Date: May 20, 1998
- ------------------------------------
Nobuo Mii, Director
* By /s/ Michael D. Yonker Date: May 20, 1998
-------------------------------
Michael D. Yonker
Attorney-In-Fact
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
----------- ----------- ----
<S> <C>
4.1 In Focus Systems, Inc. 1998 Stock Incentive Plan. II-1
4.1.1 Form of Incentive Stock Option Agreement under the In Focus II-10
Systems, Inc. 1998 Stock Incentive Plan.
4.1.2 Form of Nonstatutory Stock Option Agreement under the In Focus II-13
Systems, Inc. 1998 Stock Incentive Plan.
4.1.3 Form of Executive Stock Option Agreement under the In Focus II-16
Systems, Inc. 1998 Stock Incentive Plan.
4.1.4 Form of Executive Nonstatutory Stock Option Agreement under the In II-20
Focus Systems, Inc. 1998 Stock Incentive Plan.
4.1.5 Form of Restricted Stock Agreement under the In Focus Systems, Inc. II-24
1998 Stock Incentive Plan.
5 Opinion of Counsel II-27
23.1 Consent of Independent Certified Public Accountants. II-28
23.2 Consent of Counsel (included in opinion of counsel filed as Exhibit ---
5 herewith).
24.1 Power of Attorney of Peter D. Behrendt II-29
24.2 Power of Attorney of Michael R. Hallman II-30
24.3 Power of Attorney of Nobuo Mii II-31
</TABLE>
6
<PAGE> 1
EXHIBIT 4.1
IN FOCUS SYSTEMS, INC.
1998 STOCK INCENTIVE PLAN
1. STATEMENT OF PURPOSE.
The principal purposes of this Stock Incentive Plan ("Plan") are to
secure to In Focus Systems, Inc. (the "Company") the advantages of the incentive
inherent in stock ownership on the part of employees, officers, directors, and
consultants responsible for the continued success of the Company and to create
in such individuals a proprietary interest in, and a greater concern for, the
welfare of the Company through the grant of options to acquire shares of the
common stock of the Company ("Common Stock") and through the award of restricted
Common Stock. Such grants or awards of options and of stock pursuant to this
Plan shall be referred to as "Awards." Each incentive stock option ("ISO")
granted hereunder is intended to constitute an "incentive stock option," as such
term is defined in Section 422 of the Internal Revenue Code of 1986, as the same
may be amended from time to time (the "Code"), and this Plan and each such ISO
is intended to comply with all of the requirements of said Section 422 and of
all other provisions of the Code applicable to incentive stock options and to
plans issuing the same. Each nonstatutory stock option ("Non-ISO") granted
hereunder is intended to constitute a nonstatutory stock option that does not
comply with the requirements of Section 422 of the Code. ISO's and Non-ISO's
shall sometimes hereinafter be referred to collectively as "Options". This Plan
is expected to benefit shareholders by enabling the Company to attract and
retain personnel of the highest caliber by offering to them an opportunity to
share in any increase in the value of the Common Stock to which such personnel
have contributed.
2. ADMINISTRATION.
2.1 The Plan shall be administered by the Board of Directors of the
Company ("Board") or a committee or committees (which term includes
subcommittees) appointed by, and consisting of two or more members of, the Board
(hereinafter, "Plan Administrator"). If and so long as the Common Stock is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended ("Exchange Act"), the Board shall consider in selecting the Plan
Administrator and the membership of any committee acting as Plan Administrator
of the Plan with respect to any persons subject or likely to become subject to
Section 16 under the Exchange Act the provisions regarding (a) "outside
directors," as contemplated by Section 162(m) of the Code, and (b) "nonemployee
directors," as contemplated by Rule 16b-3 under the Exchange Act. The Board may
delegate the responsibility for administering the Plan with respect to
designated classes of eligible persons to different committees, subject to such
limitations as the Board deems appropriate. Committee members shall serve for
such term as the Board may determine, subject to removal by the Board at any
time.
2.2 Except for the terms and conditions explicitly set forth in the
Plan, the Plan Administrator shall have exclusive authority, in its discretion,
to determine all matters relating to awards under the Plan, including the
selection of individuals to be granted Awards, the type of Awards, the number of
shares of Common Stock subject to an Award, all terms, conditions, restrictions
and limitations, if any, of an Award, and the terms of any instrument that
evidences the Award. The Plan Administrator shall also have exclusive authority
to interpret the Plan and may from time to time adopt, and change, rules and
regulations of general application for the Plan's administration. The Plan
Administrator's interpretation of the Plan and its rules and regulations, and
all actions taken and determinations made by the Plan Administrator pursuant to
the Plan, shall be conclusive and binding on all parties involved or affected.
The Plan Administrator may delegate administrative duties to such of the
Company's officers as it so determines.
3. ELIGIBILITY.
3.1 ISO's may be granted to any employee of the Company or of an
Affiliate of the Company, as defined in Section 3.2 below. Non-ISO's may be
granted to any employee, officer or director (whether or not also an employee),
or consultant of the Company or of an Affiliate of the Company. Each employee,
officer, director, or consultant selected by the Plan Administrator to receive
an Option shall sometimes hereinafter be referred to as an "Optionee".
II-1
<PAGE> 2
3.2 As used in this Plan, an "Affiliate" of a corporation shall refer
to a "parent corporation" of such corporation as described in Section 424(e) of
the Code or a "subsidiary corporation" of such corporation as described in
Section 424(f) of the Code.
3.3 An Optionee who is not an employee of the Company or of an
Affiliate of the Company shall not be eligible to receive an ISO hereunder and
no ISO's shall be granted to any such non-employee Optionee.
3.4 No Option shall be granted hereunder to any Optionee unless the
Plan Administrator shall have determined, based on the advice of counsel, that
the grant of such option (and the exercise thereof by the Optionee) will not
violate the securities law of the state where the Optionee resides.
4. SHARES SUBJECT TO THE PLAN.
4.1 Subject to adjustment from time to time as provided in Section
10, a maximum of one million five hundred thousand (1,500,000) shares of Common
Stock shall be available for issuance under the Plan; in addition, if subsequent
to the 1998 Annual Meeting of the Company's shareholders the Company repurchases
any shares of Common Stock (whether on the open market, pursuant to option
exercises or otherwise), then additional shares of Common Stock may be issued
pursuant to the Plan, provided that the number of such additional shares shall
not exceed the lesser of (i) the number of shares so repurchased, or (ii) one
million five hundred thousand (1,500,000) shares. Shares issued under the Plan
shall be drawn from authorized and unissued shares.
4.2 Upon exercise of an Option, the number of shares of Common Stock
thereafter available hereunder and under the Option shall decrease by the number
of shares of Common Stock as to which such Option was exercised; provided that
if such shares are pledged to secure a promissory note given in payment of the
Option Price for such shares and, as a result of a default on such note, the
pledged shares are returned to the Company, then such shares shall again be
available for the purposes of this Plan.
4.3 Any shares of Common Stock made subject to an Award granted
hereunder that cease to be subject to the Award (other than by reason of
exercise or payment of the Award to the extent it is exercised for or settled in
shares) shall again be available for issuance in connection with future Awards
under this Plan.
4.4 The Company shall at all times during the term of this Plan
reserve and keep available such number of shares as shall be sufficient to
satisfy the requirements of the Plan.
4.5 Subject to any adjustment as provided in Section 10, if and so
long as the Common Stock is registered under Section 12 of the Exchange Act, not
more than four hundred thousand (400,000) shares of Common Stock may be made
subject to Awards under the Plan to any one individual in the aggregate in any
one fiscal year of the Company, except the Company may make additional one-time
grants of up to one million (1,000,000) shares to a newly hired individual, such
limitation to be applied in a manner consistent with the requirements of, and
only to the extent required for compliance with, the exclusion from the
limitation on deductibility of compensation under Section 162(m) of the Code.
5. OPTION TERMS.
5.1 The Plan Administrator shall specify the following terms to be
contained in each Option granted to an Optionee hereunder, which Option shall be
executed by the Company and such Optionee:
5.1.1 Whether such Option is an ISO or a Non-ISO;
5.1.2 The number of shares of Common Stock subject to purchase
pursuant to such Option;
5.1.3 The date on which the grant of such Option shall be
effective (the "Date of Grant");
II-2
<PAGE> 3
5.1.4 The period of time during which such Option shall be
exercisable, which shall in no event be more than ten (10) years following its
Date of Grant for ISO's; provided, however, that if an ISO is granted to an
Optionee who on the Date of Grant owns, either directly or indirectly within the
meaning of Section 424(d) of the Code, more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or an Affiliate of
the Company, the period of time during which such Option shall be exercisable
shall in no event be more than five (5) years following its Date of Grant;
5.1.5 The price at which such Option shall be exercisable by the
Optionee (the "Option Price"); provided, however, that the Option Price for all
Options shall be not less than the fair market value, as defined in Section 5.2
below, on the Date of Grant of the shares of Common Stock subject thereto; and
provided further that, if such Option is granted to an Optionee who on the Date
of Grant owns, either directly or indirectly within the meaning of Section
424(d) of the Code, more than ten percent (10%) of the total combined voting
power of all classes of stock of the Company or an Affiliate of the Company,
then the Option Price specified in such Option shall be at least one hundred ten
percent (110%) of the fair market value, on the Date of Grant, of the Common
Stock subject thereto;
5.1.6 Any vesting schedule upon which the exercise of an Option
is contingent; provided that the Plan Administrator shall have complete
discretion with respect to the terms of any vesting schedule upon which the
exercise of an Option is contingent, including, without limitation, discretion
(a) to allow full and immediate vesting upon grant of such Option, (b) to permit
partial vesting in stated percentage amounts based on the length of the holding
period of such Option, or (c) to permit full vesting after a stated holding
period has passed; and
5.1.7 Such other terms and conditions as the Plan Administrator
deems advisable and as are consistent with the purpose of this Plan.
5.2 Fair market value shall be determined as follows:
5.2.1 If the Company's Common Stock is publicly traded at the
time an Option is granted hereunder, fair market value shall be determined as of
the date of grant and shall mean:
(a) The average (on that date) of the high and low prices
of the Common Stock on the principal national securities exchange
on which the Common Stock is traded, if the Common Stock is then
traded on a national securities exchange; or
(b) The last reported sale price (on that date) of the
Common Stock on the NASDAQ National Market System, if the Common
Stock is not then traded on a national securities exchange; or
(c) The closing bid price (or average of bid prices) last
quoted on such date by an established quotation service for
over-the-counter securities, if the Common Stock is not reported
on the NASDAQ National Market System.
5.2.2 If the Common Stock is not publicly traded at the time an
Option is granted hereunder, fair market value shall be deemed to be the fair
value of the Common Stock as determined by the Plan Administrator after taking
into consideration all factors that it deems appropriate, including, without
limitation, recent sale and offer prices of the Common Stock in private
transactions negotiated at arm's length.
5.3 No Option shall be granted hereunder during the suspension of
this Plan or after the termination of this Plan pursuant to Section 12.2. Except
as expressly provided herein, nothing contained in this Plan shall require that
the terms and conditions of Options granted hereunder be uniform.
5.4 Notwithstanding anything in the Plan to the contrary, the Plan
Administrator may grant Options under the Plan in substitution for options
issued under other plans, or assume under the Plan awards issued under other
plans, if the other plans are or were plans of other acquired entities
("Acquired Entities") (or the parent of the Acquired Entity) and the new Option
is substituted, or the old option is assumed, by reason of a merger,
consolidation, acquisition of property or of stock, reorganization or
liquidation (the "Acquisition Transaction"). In the event that a written
agreement pursuant to which the Acquisition Transaction is completed is
II-3
<PAGE> 4
approved by the Board and said agreement sets forth the terms and conditions of
the substitution for or assumption of outstanding awards of the Acquired Entity,
said terms and conditions shall be deemed to be the action of the Plan
Administrator without any further action by the Plan Administrator, and the
persons holding such Options shall be deemed to be Optionees.
6. LIMITATION ON GRANTS OF ISO'S.
In the event that the aggregate fair market value of Common Stock and other
stock with respect to which ISO's granted to an Optionee hereunder or incentive
stock options granted to such Optionee under any other plan of the Company or
any of its Affiliates are exercisable for the first time during any calendar
year, exceeds the maximum permitted under Section 422(d) of the Code, then to
the extent of such excess, such ISO's shall be treated as Non-ISO's.
7. EXERCISE OF OPTION.
7.1 Subject to any limitations or conditions imposed upon an Option
pursuant to Section 5 above, an Optionee may exercise an Option or any part
thereof (unless partial exercise is specifically prohibited by the terms of the
Option), by giving written notice thereof to the Company at its principal place
of business accompanied by payment as described in Section 7.2.
7.2 The exercise price for shares purchased under an Option shall be
paid in full to the Company by delivery of consideration equal to the Option
Price for the whole number of shares as to which it is exercised. Such
consideration must be paid in cash or by check, or, in the Plan Administrator's
discretion, a combination of cash and/or check and/or one or both of the
following alternative forms: (a) tendering (either actually or, if and so long
as the Common Stock is registered under Section 12(b) or 12(g) of the Exchange
Act, by attestation) Common Stock already owned by the Optionee for at least six
(6) months (or any shorter period necessary to avoid a charge to the Company's
earnings for financial reporting purposes) having a fair market value on the day
prior to the exercise date equal to the aggregate Option Price or (b) if and so
long as the Common Stock is registered under Section 12(b) or 12(g) of the
Exchange Act, delivery of a properly executed exercise notice, together with
irrevocable instructions, to (i) a brokerage firm, that may from time to time be
designated by the Company in its discretion, to deliver to the Company the
aggregate amount of sale or loan proceeds to pay the Option Price and any
withholding tax obligations that may arise in connection with the exercise and
(ii) the Company, to deliver the certificates for such purchased shares directly
to such brokerage firm, all in accordance with the regulations of the Federal
Reserve Board. In addition, the exercise price for shares purchased under an
Option may be paid, either singly or in combination with one or more of the
alternative forms of payment authorized by this Section 7.2, by (y) a promissory
note; or (z) such other consideration as the Plan Administrator may permit. Any
promissory note delivered in connection with exercise of an Option shall bear
interest at a rate specified by the Plan Administrator but in no case less than
the rate required to avoid imputation of interest (taking into account any
exceptions) for federal income tax purposes.
7.3 As soon as practicable after exercise of an option in accordance
with Sections 7.1 and 7.2 above, the Company shall issue a stock certificate
evidencing the Common Stock with respect to which the Option has been exercised.
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 such stock
certificate, no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to such Common Stock, notwithstanding the
exercise of the Option. No adjustment will 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 10 below.
7.4 The amount to be paid by the Optionee upon exercise shall be the
full Option Price together with the amount of any taxes required to be withheld
with respect to the grant or exercise of the Option. Subject to the Plan and to
applicable law, the Plan Administrator, in its sole discretion, may permit such
withholding obligations to be paid, in whole or in part, by electing to have the
Company withhold shares of Common Stock or by transferring shares of Common
Stock to the Company, in such amounts as are equivalent to the fair market value
of the withholding obligation.
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8. TRANSFERABILITY AND POST-TERMINATION EXERCISES.
8.1 Except as provided otherwise in this Section 8, no Option shall
be transferable or exercisable by any person other than the Optionee to whom
such Option was originally granted.
8.2 The Plan Administrator shall establish and set forth in each
instrument that evidences an Option whether the Option will continue to be
exercisable and the terms and conditions of such exercise, if the Optionee
ceases to be employed by or provide services to the Company or its Affiliates,
which may be waived or modified by the Plan Administrator. If not so established
and subject to Section 8.3, the Option will be exercisable in accordance with
the following terms, which may be waived or modified by the Plan Administrator:
8.2.1 In case of termination of Optionee's employment or services
other than by reason of death, the Option shall be exercisable, to the extent of
the number of shares purchasable at the date of termination, only within three
months after the date the Optionee ceases to be an employee or consultant of the
Company or Affiliate, but no later than the remaining term of the Option.
8.2.2 Any Option exercisable at the time of the Optionee's death
may be exercised to the extent of the number of shares purchasable at the date
of death, by the personal representative of the Optionee's estate or the
person(s) to whom the Optionee's rights under the Option have passed by will or
applicable laws of descent and distribution at any time or from time to time
within one year after the date of death, but in no event later than the
remaining term of the Option.
8.2.3 Any portion of an Option not exercisable on the date of
termination of the Optionee's employment or services shall terminate on such
date, unless the Plan Administrator determines otherwise.
8.2.4 Subject to Section 8.3, the effect of a Company-approved
leave of absence on terms and conditions of an Option shall be determined by the
Plan Administrator in its sole discretion. A transfer of services or employment
between or among the Company and subsidiaries shall not be considered a
termination of employment or services.
8.2.5 To the extent exercisable, a Non-ISO may be exercised
during the Optionee's lifetime by the Optionee's guardian or legal
representative.
8.3 To the extent required by Section 422 of the Code, ISO's shall be
subject to the following additional terms and conditions: To qualify for ISO tax
treatment, an Option designated as an ISO must be exercised within three months
after termination of employment for reasons other than death, except that in the
case of termination of employment due to total disability, such Option must be
exercised within one year after such termination. Employment shall not be deemed
to continue beyond the first 90 days of a leave of absence unless the Optionee's
reemployment rights are guaranteed by statute or contract. For purposes of this
Section 8.3, "total disability" shall have the meaning given to such term in the
Company's long-term disability plan, as such plan is in effect on the date of
determination.
8.4 In the event that a qualified domestic relations order, as
defined by Section 414(p) of the Code or Title I of the Employee Retirement
Income Security Act or the rules thereunder, mandates the transfer of any Option
that could have been exercised immediately prior to the issuance of such order,
such Option shall pass to the person or persons entitled thereto pursuant to the
order and shall be exercisable by such person or persons in accordance with the
terms thereof.
8.5 The Plan Administrator may, in its discretion, authorize all or a
portion of the Non-ISO's granted to an Optionee to be on terms which permit
transfer by such Optionee to (i) the spouse, children or grandchildren of the
Optionee ("Immediate Family Members"), (ii) a trust or trusts for the exclusive
benefit of such Immediate Family Members, or (iii) a partnership in which such
Immediate Family Members are the only partners, provided that (x) there may be
no consideration for any such transfer, (y) the stock option agreement pursuant
to which such Options are granted must be approved by the Plan Administrator and
must expressly provide for transferability in a manner consistent with this
Section, and (z) subsequent transfers of transferred Options are prohibited
except those in accordance with Section 8 of the Plan. The Plan Administrator
may, in its discretion, in permitting transferability, impose additional
conditions in the Option Agreement consistent with this
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section, including without limitation imposition of a post-exercise holding
period on transferees. Following transfer, any such Options shall continue to be
subject to the same terms and conditions as were applicable immediately prior to
transfer; provided, the events of termination of employment of Sections 8 and 9
hereof shall continue to be applied with respect to the original Optionee,
following which the Options shall be exercisable by the transferee only to the
extent and for the periods specified. The Company disclaims any obligation to
provide notice to a transferee of early termination of the Option due to
termination of employment or otherwise. Notwithstanding a transfer pursuant to
the foregoing, the original Optionee will remain subject to applicable
withholding taxes upon exercise. No transfer will be effective until written
notice of transfer is delivered to the Company. The Company reserves the right
to approve transfers hereunder.
8.6 In order to obtain certain tax benefits afforded to ISO's under
Section 422 of the Code, the Optionee must hold the shares issued upon exercise
of an ISO for two years after the grant date of the ISO and one year from the
date of exercise. An Optionee may be subject to the alternative minimum tax at
the time of exercise of an ISO. The Plan Administrator may require an Optionee
to give the Company prompt notice of any disposition of shares acquired by the
exercise of an ISO prior to expiration of such holding periods.
9. TERMINATION OF OPTIONS.
To the extent not earlier exercised, an Option shall terminate at the
earliest of the following dates:
9.1 The termination date specified for such Option in the respective
Option Agreement;
9.2 As specified in Section 8 above:
9.3 The date of any sale, transfer, or hypothecation, or any
attempted sale, transfer or hypothecation, of such Option in violation of
Section 8 above;
9.4 The date specified in Section 10.2 below for such termination in
the event of a Terminating Event; or
9.5 At the discretion of the Plan Administrator, immediately upon
determination by the Plan Administrator that the Optionee has (i) made
unauthorized disclosure of confidential information relating to the Company,
(ii) failed to assign to the Company any invention which the Optionee is
obligated to assign to the Company pursuant to written agreement or otherwise,
or (iii) breached the terms of any written agreement in effect between the
Company and the Optionee relating to confidentiality, nondisclosure or ownership
of inventions.
10. ADJUSTMENTS.
10.1 In the event of a material alteration in the capital structure
of the Company on account of a recapitalization, stock split, reverse stock
split, stock dividend, or otherwise, then the Plan Administrator shall make such
adjustments to this Plan and to the Awards then outstanding and thereafter
granted hereunder as the Plan Administrator determines to be appropriate and
equitable under the circumstances, so that the proportionate interest of each
holder shall, to the extent practicable, be maintained as before the occurrence
of such event. Such adjustments may include, without limitation (a) a change in
the number or kind of shares of stock of the Company covered by such Awards, and
(b) a change in the Option Price payable per share; provided, however, that the
aggregate Option Price applicable to the unexercised portion of existing Options
shall not be altered, it being intended that any adjustments made with respect
to such Options shall apply only to the price per share and the number of shares
subject thereto. For purposes of this Section 10.1, neither (i) the issuance of
additional shares of stock of the Company in exchange for adequate consideration
(including services), nor (ii) the conversion of outstanding preferred shares of
the Company into Common Stock shall be deemed material alterations of the
capital structure of the Company. In the event the Plan Administrator shall
determine that the nature of a material alteration in the capital structure of
the Company is such that it is not practical or feasible to make appropriate
adjustments to this Plan or to the Awards granted hereunder, such event shall be
deemed a Terminating Event as defined in Section 10.2 below.
10.2 All Options granted hereunder shall terminate upon the
occurrence of any of the following events ("Terminating Events"): (a) the
dissolution or liquidation of the Company; or (b) a material
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change in the capital structure of the Company that is subject to this Section
10.2 by virtue of the last sentence of Section 10.1 above.
10.3 All Options granted hereunder shall become immediately
exercisable, without regard to any contingent vesting provision to which such
Options may have otherwise been subject, in the event of a reorganization (as
defined in Section 10.4), which results in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) less than a majority of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such reorganization.
10.4 In the event of a reorganization as defined in this Section 10.4
in which the Company is not the surviving or acquiring company, or in which the
Company is or becomes a wholly-owned subsidiary of another company after the
effective date of the reorganization, then the plan or agreement respecting the
reorganization shall include appropriate terms providing for the assumption of
each Option granted hereunder, or the substitution of an option therefor, such
that no "modification" of any such Option occurs under Section 424 of the Code.
For purposes of Section 10.3 and this Section 10.4, reorganization shall mean
any statutory merger, statutory consolidation, sale of all or substantially all
of the assets of the Company, or sale, pursuant to an agreement with the
Company, of securities of the Company pursuant to which the Company is or
becomes a wholly-owned subsidiary of another corporation after the effective
date of the reorganization.
10.5 The Plan Administrator shall have the right to accelerate the
date of exercise of any installment of any option; provided, however, that,
without the consent of the Optionee with respect to any Option, the Plan
Administrator shall not accelerate the date of any installment of any Option
granted to an employee as an ISO (and not previously converted into a Non-ISO
pursuant to Section 13 below) if such acceleration would violate the annual
vesting limitation contained in Section 422(d) of the Code, as described in
Section 6 above.
10.6 Adjustments and determinations under this Section 10 shall be
made by the Plan Administrator (upon the advice of counsel), whose decisions as
to what adjustments or determination shall be made, and the extent thereof,
shall be final, binding, and conclusive.
11. STOCK AWARDS.
11.1 GRANT OF STOCK AWARDS. The Plan Administrator is authorized to
make awards of Common Stock on such terms and conditions and subject to such
restrictions, if any (which may be based on continuous service with the Company
or the achievement of performance goals related to operating profit as a
percentage of revenues, revenue and profit growth, profit-related return ratios,
such as return on equity, or cash flow, where such goals may be stated in
absolute terms or relative to comparison companies), as the Plan Administrator
shall determine, in its sole discretion, which terms, conditions and
restrictions shall be set forth in the instrument evidencing the award ("Stock
Award"). The terms, conditions and restrictions that the Plan Administrator
shall have the power to determine shall include, without limitation, the manner
in which shares subject to Stock Awards are held during the periods they are
subject to restrictions and the circumstances under which forfeiture of
restricted stock shall occur by reason of termination of the holder's services.
11.2 ISSUANCE OF SHARES. Upon the satisfaction of any terms,
conditions and restrictions prescribed in respect to a Stock Award, or upon the
holder's release from any terms, conditions and restrictions of a Stock Award,
as determined by the Plan Administrator, the Company shall deliver, as soon as
practicable, to the holder or, in the case of the holder's death, to the
personal representative of the holder's estate or as the appropriate court
directs, a stock certificate for the appropriate number of shares of Common
Stock.
11.3 WAIVER OF RESTRICTIONS. Notwithstanding any other provisions of
the Plan, the Plan Administrator may, in its sole discretion, waive the
forfeiture period and any other terms, conditions or restrictions on any
restricted stock under such circumstances and subject to such terms and
conditions as the Plan Administrator shall deem appropriate.
11.4 PAYMENT. Stock Awards under the Plan may be settled through cash
payments, delivery of Common Stock or granting of awards or combinations thereof
as the Plan Administrator shall determine. Any award settlement, including
payment deferrals, may be subject to such conditions, restrictions
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and contingencies as the Plan Administrator shall determine. The Plan
Administrator may permit or require deferral of any award payment, subject to
rules and procedures as it may establish, which may include provisions for
payment or crediting of interest, or dividend equivalents.
12. TERMINATION AND AMENDMENT OF PLAN.
12.1 The Plan may be amended only by the Board as it shall deem
advisable; however, to the extent required for compliance with Section 422 of
the Code or any applicable law or regulation, shareholder approval will be
required for any amendment that will (a) increase the total number of shares as
to which Awards may be granted under the Plan, (b) modify the class of persons
eligible to receive Awards, or (c) otherwise require shareholder approval under
any applicable law or regulation.
12.2 The Company's shareholders or the Board may suspend or terminate
the Plan at any time. The Plan will have no fixed expiration date; provided,
however, that no ISO may be granted more than ten (10) years after the earlier
of the Plan's adoption by the Board and approval by the shareholders.
12.3 The amendment or termination of the Plan shall not, without the
consent of the Optionee under the Plan, impair or diminish any rights or
obligations under any Option theretofore granted under the Plan. Any change or
adjustment to an outstanding ISO shall not, without the consent of the holder,
be made in a manner so as to constitute a "modification" that would cause such
ISO to fail to continue to qualify as an incentive stock option.
13. CONVERSION OF ISO'S INTO NON-ISO'S.
At the written request of any ISO Optionee, the Plan Administrator may in its
discretion take such actions as may be necessary to convert such Optionee's
ISO's (or any installments or portions of installments thereof) that have not
been exercised on the date of conversion into Non-ISO's at any time prior to the
expiration of such ISO's, regardless of whether the Optionee is an employee of
the Company or of an Affiliate of the Company at the time of such conversion.
Such actions may include, but shall not be limited to, extending the exercise
period or reducing the exercise price of the appropriate installments of such
ISO's. At the time of such conversion, the Plan Administrator, with the consent
of the Optionee, may impose such conditions on the exercise of the resulting
Non-ISO's as the Plan Administrator in its discretion may determine, provided
that such conditions shall not be inconsistent with this Plan. Nothing in this
Plan shall be deemed to give any Optionee the right to have such Optionee's
ISO's converted into Non-ISO's, and no such conversion shall occur until and
unless the Plan Administrator takes appropriate action. The Plan Administrator,
with the consent of the Optionee, may also terminate any portion of any ISO that
has not been exercised at the time of such conversion.
14. CONDITIONS UPON ISSUANCE OF SHARES.
14.1 Shares shall not be issued pursuant to the exercise of any Award
unless the exercise of such Award and the issuance and delivery of such shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended ("Securities Act"),
the Exchange Act, any applicable state securities law, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the shares may then be listed or otherwise traded, and such compliance has been
confirmed by counsel for the Company. The Company shall be under no obligation
to any participants to register for offering or resale or to qualify for an
exemption under the Securities Act, or to register or qualify under state
securities laws, any shares of Company's stock issued under the Plan or to
continue in effect any registrations or qualifications if made. The Company may
issue certificates for shares with such legends and subject to such restrictions
on transfer as counsel for the Company deems necessary or desirable for
compliance with federal and state securities laws.
14.2 As a condition to the exercise of any Option, the Company may
require the participant 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 representations and
warranties are required by any relevant provision of law.
14.3 The Company's inability to obtain authority from any regulatory
body having jurisdiction, which authority the Company's counsel has determined
to be necessary to the lawful issuance and
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sale of any shares hereunder, shall relieve the Company of any liability with
respect to the failure to issue or sell such shares.
15. USE OF PROCEEDS.
Proceeds from the sale of Common Stock pursuant to the exercise of Options
granted hereunder shall constitute general funds of the Company and shall be
used for general corporate purposes.
16. NOTICES.
All notices, requests, demands and other communications required or permitted to
be given under this Plan and the Awards granted hereunder shall be in writing
and shall be either served personally on the party to whom notice is to be given
(in which case notice shall be deemed to have been duly given on the date of
such service), or mailed to the party to whom notice is to be given, by first
class mail, registered or certified, return receipt requested, postage prepaid,
and addressed to the party at his or its most recent known address, in which
case such notice shall be deemed to have been duly given on the third (3rd)
postal delivery day following the date of such mailing.
17. MISCELLANEOUS PROVISIONS.
17.1 Optionees shall be under no obligation to exercise Options
granted hereunder.
17.2 Nothing contained in this Plan shall obligate the Company to
retain an Optionee or holder of a Stock Award as an employee, officer, director,
or consultant for any period, nor shall this Plan interfere in any way with the
right of the Company to reduce such person's compensation.
17.3 The provisions of this Plan and each Award hereunder shall be
binding upon such holder, the Qualified Successor or Guardian, and the heirs,
successors, and assigns.
17.4 This Plan is intended to constitute an "unfunded" plan and
nothing herein shall require the Company to segregate any monies or other
property or shares of Common Stock or create any trusts or deposits, and no
Optionee or holder shall have rights greater than a general unsecured creditor
of the Company.
17.5 It is the Company's intention that, if and so long as any of the
Company's equity securities are registered pursuant to Section 12(b) or 12(g) of
the Exchange Act, the Plan shall comply in all respects with Rule 16b-3 under
the Exchange Act and, if any Plan provision is later found not to be in
compliance with such Rule 16b-3, the provision shall be deemed null and void,
and in all events the Plan shall be construed in favor of its meeting the
requirements of Rule 16b-3. Notwithstanding anything in the Plan to the
contrary, the Board, in its sole discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to Optionees
who are officers or directors subject to Section 16 of the Exchange Act without
so restricting, limiting or conditioning the Plan with respect to other
Optionees. Additionally, in interpreting and applying the provisions of the
Plan, any Option granted as an ISO pursuant to the Plan shall, to be extent
permitted by law, be construed as an "incentive stock option" within the meaning
of Section 422 of the Code.
17.6 Where the context so requires, references herein to the singular
shall include the plural, and vice versa, and references to a particular gender
shall include either or both genders.
17.7 This Plan and any agreements hereunder shall be administered,
interpreted and enforced under the internal laws of the State of Oregon without
regard to conflicts of laws thereof.
18. EFFECTIVE DATE OF PLAN AND AMENDMENTS.
This Plan was initially adopted by the Board of Directors on December 16, 1997
and approved by the shareholders on April 22, 1998.
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EXHIBIT 4.1.1
FORM OF INCENTIVE STOCK OPTION AGREEMENT
IN FOCUS SYSTEMS, INC.
INCENTIVE STOCK OPTION AGREEMENT
In Focus Systems, Inc., an Oregon corporation (the
"Corporation"), through its Board of Directors or a Committee thereof (the "Plan
Administrator"), has granted to ____________ ("Optionee") an option (the
"Option") to purchase ____________ shares of the Corporation's Common Stock (the
"Option Shares") at a price of $__________ per share (the "Option Price"). The
Option has been granted to Optionee on __________, __________ (the "Grant
Date"), pursuant to the In Focus Systems 1998 Stock Incentive Plan (the "Plan").
1. NATURE OF THE OPTION
1.1 The Option is intended to qualify as an Incentive Stock
Option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
1.2 Except as expressly provided herein, the Option is
subject to the terms, definitions and provisions of the Plan, as it may be
amended from time to time. The terms defined in the Plan have the same meaning
in this Agreement.
2. DATE EXERCISABLE; VESTING.
2.1 Subject to the restrictions and conditions set forth in
the Plan, the Option shall become exercisable by Optionee as follows:
2.1.1 The Option shall become exercisable as to
twenty-five percent (25%) of the total number of Option Shares at the end of the
twelve (12) month period of Optionee's continuous employment with the
Corporation following the Grant Date.
2.1.2 The Option shall thereafter become
exercisable as to twenty-five percent (25%) of the total number of Option Shares
at the end of each subsequent twelve (12) month period of Optionee's continuous
employment with the Corporation.
2.1.3 The right to purchase any installment of the
Option Shares shall be cumulative, so that when the right to purchase any Option
Shares has accrued, such Option Shares may be purchased at any time or from time
to time thereafter prior to the Expiration Date, subject to the limitations of
Sections 3 and 4 herein.
2.2 In the event Optionee for any reason ceases to be an
employee of the Corporation, whether by dismissal, resignation, death,
disability or otherwise, the Option shall be exercisable thereafter only to the
extent Optionee was entitled to exercise it at the date of termination of
employment.
2.3 The Option may become immediately exercisable for the
full number of Option Shares in the event of a reorganization as defined in
Section 10.4 of the Plan.
3. EXERCISE OF OPTION.
3.1 MANNER OF EXERCISE. The Option may be exercised in whole
or in part by delivery to the Corporation, from time to time, of written notice,
signed by Optionee, specifying the number of Option Shares that Optionee then
desires to purchase, together with cash or check payable to the order of the
Corporation, or other form of payment acceptable to the Plan Administrator, for
an amount of United States dollars equal to the Option Price of such Option
Shares. The total number of dates on which Optionee exercises this Option, or
any other option granted by the Corporation to Optionee, shall not exceed four
(4) in any twelve (12) month period.
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3.2 STOCK CERTIFICATES. As soon as practicable after any
exercise in whole or in part of the Option by Optionee, the Corporation shall
deliver to Optionee or, at Optionee's request, Optionee's designated broker, a
certificate or certificates for the number of shares of Stock with respect to
which the Option was so exercised, registered in Optionee's name.
4. DURATION OF OPTION. The Option, to the extent not previously
exercised, shall terminate upon the earliest of the following dates:
4.1 The date (10) years from the Grant Date (the "Expiration
Date");
4.2 Three (3) months after the date of Optionee's termination
of employment with the Corporation, in the event such termination is for any
reason other than Optionee's total disability (as defined in the Plan) or death;
4.3 One year after Optionee's termination of employment, if
such termination is by reason of Optionee's total disability (as defined in the
Plan) or death;
4.4 The date of any sale, transfer or hypothecation, or any
attempted sale, transfer or hypothecation, of such Option in violation of
Section 5;
4.5 Upon the occurrence of any Terminating Event (as defined
in the Plan); or
4.6 At the discretion of the Plan Administrator, immediately
upon determination by the Plan Administrator that the Optionee has (i) made
unauthorized disclosure of confidential information relating to the Company,
(ii) failed to assign to the Company any invention which the Optionee is
obligated to assign to the Company pursuant to written agreement or otherwise,
or (iii) breached the terms of any written agreement in effect between the
Company and the Optionee relating to confidentiality, nondisclosure or ownership
of inventions.
5. NONTRANSFERABILITY.
5.1 RESTRICTION. The Option is not transferable by Optionee
otherwise than by testamentary will, the laws of descent and distribution, or
qualified domestic relations order (as defined in the Plan) and, during
Optionee's lifetime, may be exercised only by Optionee or Optionee's guardian or
legal representative or the transferee pursuant to a qualified domestic
relations order. No assignment or transfer of the Option, whether voluntary,
involuntary, or by operation of law or otherwise, except by testamentary will,
the laws of descent and distribution, or qualified domestic relations order,
shall vest in the assignee or transferee any interest or right, but immediately
upon any attempt to assign or transfer the Option, the Option shall terminate
and be of no further force or effect.
5.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the
word "Optionee" is used in any provision of this Agreement under circumstances
when the provision should logically be construed to apply to the Optionee's
guardian, legal representative, executor, administrator, or the person or
persons to whom the Option may be transferred by testamentary will, the laws of
descent and distribution, or qualified domestic relations order, the word
"Optionee" shall be deemed to include such person or persons.
6. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. Optionee shall
not be deemed for any purpose to be a shareholder of the Corporation with
respect to any Option Shares as to which the Option has not been exercised.
7. ADJUSTMENTS UPON RECAPITALIZATION OR REORGANIZATION.
7.1 RECAPITALIZATION. In the event of a material alteration
in the capital structure of the Corporation on account of a recapitalization,
stock split, reverse stock split, stock dividend or otherwise, the Option shall
be subject to adjustment by the Plan Administrator in accordance with the Plan.
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7.2 REORGANIZATION. In the event of a reorganization as
defined in the Plan, the Option shall be assumed or an option substituted
therefor in accordance with the Plan.
8. MISCELLANEOUS PROVISIONS.
8.1 DISCLAIMER. Notwithstanding any other provision herein to
the contrary, Optionee acknowledges that the Corporation cannot, and does not,
guarantee that the Plan or the Option meets all the requirements of IRC Section
422. Optionee hereby releases and discharges the Corporation, and its
successors, officers and directors, from any and all loss, liability or damage
that Optionee may incur in the event the Plan or the Option fails, for whatever
reason, to meet all the requirements of IRC Section 422.
8.2 WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the sale of
Option Shares, the Corporation, in accordance with the Code, may require
Optionee to pay additional withholding taxes in respect of the amount that is
considered compensation includible in Optionee's gross income.
8.3 DISPUTES. Any dispute or disagreement that may arise
under or as a result of this Agreement, or any question as to the interpretation
of this Agreement or the Plan, shall be determined by the Plan Administrator in
its absolute discretion, and any such determination shall be final, binding, and
conclusive on all affected persons.
8.4 DISPOSITION OF STOCK. Optionee understands that if
Optionee disposes of any Option Shares within two (2) years after the Date of
Grant or within one (1) year after such Option Shares were issued to Optionee,
Optionee may be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount equal to the fair
market value of the Option Shares at the time of exercise minus the price paid
for such shares. Optionee hereby agrees to notify the Corporation in writing
within 30 days after the date of any such disposition.
8.5 GOVERNING LAW. This Agreement shall be administered,
interpreted and enforced under the internal laws of the State of Oregon, without
regard to conflicts of laws thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the Date of Grant.
OPTIONEE: CORPORATION:
IN FOCUS SYSTEMS, INC.
_______________________________ By:______________________________________
_______________________________ Name: Susan L. Thompson
Title: Vice-President,
Human Resources
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EXHIBIT 4.1.2
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
IN FOCUS SYSTEMS, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
In Focus Systems, Inc., an Oregon corporation (the
"Corporation"), through its Board of Directors or a Committee thereof (the "Plan
Administrator"), has granted to ____________ ("Optionee") an option (the
"Option") to purchase ____________ shares of the Corporation's Common Stock (the
"Option Shares") at a price of $__________ per share (the "Option Price"). The
Option has been granted to Optionee on __________, __________ (the "Grant
Date"), pursuant to the In Focus Systems 1998 Stock Incentive Plan (the "Plan").
1. NATURE OF THE OPTION
1.1 The Option is a nonstatutory option and is not intended
to qualify as an Incentive Stock Option as defined in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
1.2 Except as expressly provided herein, the Option is
subject to the terms, definitions and provisions of the Plan, as it may be
amended from time to time. The terms defined in the Plan have the same meaning
in this Agreement.
2. DATE EXERCISABLE; VESTING.
2.1 Subject to the restrictions and conditions set forth in
the Plan, the Option shall become exercisable by Optionee as follows:
2.1.1 The Option shall become exercisable as to
twenty-five percent (25%) of the total number of Option Shares at the end of the
twelve (12) month period of Optionee's continuous employment with the
Corporation following the Grant Date.
2.1.2 The Option shall thereafter become
exercisable as to twenty-five percent (25%) of the total number of Option Shares
at the end of each subsequent twelve (12) month period of Optionee's continuous
employment with the Corporation.
2.1.3 The right to purchase any installment of the
Option Shares shall be cumulative, so that when the right to purchase any Option
Shares has accrued, such Option Shares may be purchased at any time or from time
to time thereafter prior to the Expiration Date, subject to the limitations of
Sections 3 and 4 herein.
2.2 In the event Optionee for any reason ceases to be an
employee of the Corporation, whether by dismissal, resignation, death,
disability or otherwise, the Option shall be exercisable thereafter only to the
extent Optionee was entitled to exercise it at the date of termination of
employment.
2.3 The Option may become immediately exercisable for the
full number of Option Shares in the event of a reorganization as defined in the
Plan.
3. EXERCISE OF OPTION.
3.1 MANNER OF EXERCISE. The Option may be exercised in whole
or in part by delivery to the Corporation, from time to time, of written notice,
signed by Optionee, specifying the number of Option Shares that Optionee then
desires to purchase, together with cash or check payable to the order of the
Corporation, or other form of payment acceptable to the Plan Administrator, for
an amount of United States dollars equal to the Option Price of such Option
Shares. The total number of dates on which Optionee exercises this Option, or
any other option granted by the Corporation to Optionee, shall not exceed four
(4) in any twelve (12) month period.
II-13
<PAGE> 2
3.2 STOCK CERTIFICATES. As soon as practicable after any
exercise in whole or in part of the Option by Optionee, the Corporation shall
deliver to Optionee or, at Optionee's request, Optionee's designated broker, a
certificate or certificates for the number of shares of Stock with respect to
which the Option was so exercised, registered in Optionee's name.
4. DURATION OF OPTION. The Option, to the extent not previously
exercised, shall terminate upon the earliest of the following dates:
4.1 The date (10) years from the Grant Date (the "Expiration
Date");
4.2 Three (3) months after the date of Optionee's termination
of employment with the Corporation, in the event such termination is for any
reason other than Optionee's total disability (as defined in the Plan) or death;
4.3 One year after Optionee's termination of employment, if
such termination is by reason of Optionee's total disability (as defined in the
Plan) or death;
4.4 The date of any sale, transfer or hypothecation, or any
attempted sale, transfer or hypothecation, of such Option in violation of
Section 5;
4.5 Upon the occurrence of any Terminating Event (as defined
in the Plan); or
4.6 At the discretion of the Plan Administrator, immediately
upon determination by the Plan Administrator that the Optionee has (i) made
unauthorized disclosure of confidential information relating to the Company,
(ii) failed to assign to the Company any invention which the Optionee is
obligated to assign to the Company pursuant to written agreement or otherwise,
or (iii) breached the terms of any written agreement in effect between the
Company and the Optionee relating to confidentiality, nondisclosure or ownership
of inventions.
5. NONTRANSFERABILITY.
5.1 RESTRICTION. The Option is not transferable by Optionee
otherwise than by testamentary will, the laws of descent and distribution, or
qualified domestic relations order (as defined in the Plan) and, during
Optionee's lifetime, may be exercised only by Optionee or Optionee's guardian or
legal representative or the transferee pursuant to a qualified domestic
relations order. No assignment or transfer of the Option, whether voluntary,
involuntary, or by operation of law or otherwise, except by testamentary will,
the laws of descent and distribution, or qualified domestic relations order,
shall vest in the assignee or transferee any interest or right, but immediately
upon any attempt to assign or transfer the Option, the Option shall terminate
and be of no further force or effect.
5.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the
word "Optionee" is used in any provision of this Agreement under circumstances
when the provision should logically be construed to apply to the Optionee's
guardian, legal representative, executor, administrator, or the person or
persons to whom the Option may be transferred by testamentary will, the laws of
descent and distribution, or qualified domestic relations order, the word
"Optionee" shall be deemed to include such person or persons.
6. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. Optionee shall
not be deemed for any purpose to be a shareholder of the Corporation with
respect to any Option Shares as to which the Option has not been exercised.
7. ADJUSTMENTS UPON RECAPITALIZATION OR REORGANIZATION.
7.1 RECAPITALIZATION. In the event of a material alteration
in the capital structure of the Corporation on account of a recapitalization,
stock split, reverse stock split, stock dividend or otherwise, the Option shall
be subject to adjustment by the Plan Administrator in accordance with the Plan.
7.2 REORGANIZATION. In the event of a reorganization as
defined in the Plan, the
II-14
<PAGE> 3
Option shall be assumed or an option substituted therefor in accordance with the
Plan.
8. MISCELLANEOUS PROVISIONS.
8.1 TAXATION UPON EXERCISE OF OPTION. Optionee understands
that pursuant to certain provisions of the Code, upon exercise of the Option,
Optionee may recognize income for tax purposes in an amount equal to the excess
of the then fair market value of the Option Shares over the Option Price. The
Corporation may be required to withhold tax from Optionee's current compensation
with respect to such income; to the extent that Optionee's current compensation
is insufficient to satisfy the withholding tax liability, the Company may
require the Optionee to make a cash payment to cover such liability as a
condition of exercise of the Option.
8.2 DISPUTES. Any dispute or disagreement that may arise
under or as a result of this Agreement, or any question as to the interpretation
of this Agreement or the Plan, shall be determined by the Plan Administrator in
its absolute discretion, and any such determination shall be final, binding, and
conclusive on all affected persons.
8.3 GOVERNING LAW. This Agreement shall be administered,
interpreted and enforced under the internal laws of the State of Oregon, without
regard to conflicts of laws thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the Date of Grant.
OPTIONEE: CORPORATION:
IN FOCUS SYSTEMS, INC.
__________________________ By:______________________________________
Name: Susan L. Thompson
Title: Vice-President, Human Resources
II-15
<PAGE> 1
EXHIBIT 4.1.3
FORM OF EXECUTIVE STOCK OPTION AGREEMENT
IN FOCUS SYSTEMS, INC.
EXECUTIVE INCENTIVE STOCK OPTION AGREEMENT
In Focus Systems, Inc., an Oregon corporation (the "Corporation"),
through its Board of Directors or a Committee thereof (the "Plan
Administrator"), has granted to ____________ ("Optionee") an option (the
"Option") to purchase ____________ shares of the Corporation's Common Stock (the
"Option Shares") at a price of $__________ per share (the "Option Price"). The
Option has been granted to Optionee on __________, __________ (the "Grant
Date"), pursuant to the In Focus Systems 1998 Stock Incentive Plan (the "Plan").
1. NATURE OF THE OPTION
1.1 The Option is intended to qualify as an Incentive Stock
Option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
1.2 Except as expressly provided herein, the Option is
subject to the terms, definitions and provisions of the Plan, as it may be
amended from time to time. The terms defined in the Plan have the same meaning
in this Agreement.
2. DATE EXERCISABLE; VESTING.
2.1 Subject to the restrictions and conditions set forth in
the Plan, the Option shall become exercisable by Optionee as follows:
2.1.1 The Option shall become exercisable as to
twenty-five percent (25%) of the total number of Option Shares at the end of the
twelve (12) month period of Optionee's continuous employment with the
Corporation following the Grant Date.
2.1.2 The Option shall thereafter become exercisable
as to twenty-five percent (25%) of the total number of Option Shares at the end
of each subsequent twelve (12) month period of Optionee's continuous employment
with the Corporation.
2.1.3 The right to purchase any installment of the
Option Shares shall be cumulative, so that when the right to purchase any Option
Shares has accrued, such Option Shares may be purchased at any time or from time
to time thereafter prior to the Expiration Date, subject to the limitations of
Sections 3 and 4 herein.
2.2 In the event Optionee for any reason ceases to be an
employee of the Corporation, whether by dismissal, resignation, death,
disability or otherwise, the Option shall be exercisable thereafter only to the
extent Optionee was entitled to exercise it at the date of termination of
employment.
2.3 Notwithstanding Sections 2.1 or 2.2 above or any other
provision herein to the contrary, the Option shall become immediately
exercisable, without regard to any contingent vesting provision to which such
Option may otherwise be subject, in the event of the occurrence of a Change of
Control.
2.4 For purposes of this Agreement, a "Change of Control"
shall be deemed to have occurred upon the first fulfillment of the conditions
set forth in any one of the following four paragraphs:
2.4.1. Any "person" as such term is defined in Section
3(a)(9) and 13(d)(3) of the Securities "Exchange Act of 1934, as amended (the
"Exchange Act"), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, is or becomes a beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company, representing twenty-five percent
(25%) or more of the combined voting power of the Company's then outstanding
securities; provided, that the foregoing shall not include a person who acquires
such securities, or
II-16
<PAGE> 2
a material portion thereof, as the result of one or more transactions approved
by the Company's Board of Directors; or
2.4.2. A majority of the directors elected at any
Annual or special meeting of shareholders of the Company are not individuals
nominated by the Company's then incumbent Board of Directors; or
2.4.3. The shareholders of the Company approve a
reorganization, merger or consolidation of the Company with any other
corporation or entity, other than a reorganization, merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty-one percent (51%) of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such reorganization, merger or consolidation; or
2.4.4. The shareholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of its assets.
3. EXERCISE OF OPTION.
3.1 MANNER OF EXERCISE. The Option may be exercised in whole
or in part by delivery to the Corporation, from time to time, of written notice,
signed by Optionee, specifying the number of Option Shares that Optionee then
desires to purchase, together with cash or check payable to the order of the
Corporation, or other form of payment acceptable to the Plan Administrator, for
an amount of United States dollars equal to the Option Price of such Option
Shares. The total number of dates on which Optionee exercises this Option, or
any other option granted by the Corporation to Optionee, shall not exceed four
(4) in any twelve (12) month period.
3.2 STOCK CERTIFICATES. As soon as practicable after any
exercise in whole or in part of the Option by Optionee, the Corporation shall
deliver to Optionee or, at Optionee's request, Optionee's designated broker, a
certificate or certificates for the number of shares of Stock with respect to
which the Option was so exercised, registered in Optionee's name.
4. DURATION OF OPTION. The Option, to the extent not previously
exercised, shall terminate upon the earliest of the following dates:
4.1 The date (10) years from the Grant Date (the "Expiration
Date");
4.2 Three (3) months after the date of Optionee's
termination of employment with the Corporation, in the event such termination is
for any reason other than Optionee's total disability (as defined in the Plan)
or death;
4.3 One year after Optionee's termination of employment, if
such termination is by reason of Optionee's total disability (as defined in the
Plan) or death;
4.4 The date of any sale, transfer or hypothecation, or any
attempted sale, transfer or hypothecation, of such Option in violation of
Section 5;
4.5 Upon the occurrence of any Terminating Event (as defined
in the Plan);
4.6 At the discretion of the Plan Administrator, immediately
upon determination by the Plan Administrator that the Optionee has (i) made
unauthorized disclosure of confidential information relating to the Company,
(ii) failed to assign to the Company any invention which the Optionee is
obligated to assign to the Company pursuant to written agreement or otherwise,
or (iii) breached the terms of any written agreement in effect between the
Company and the Optionee relating to confidentiality, nondisclosure or ownership
of inventions; or
4.7 Immediately upon Optionee providing or agreeing to
provide services (whether
II-17
<PAGE> 3
as an employee, consultant, partner, shareholder, member, director or otherwise)
to any third-party engaged or proposing to engage in the manufacture,
distribution or development of data video projectors or components thereof.
5. NONTRANSFERABILITY.
5.1 RESTRICTION. The Option is not transferable by Optionee
otherwise than by testamentary will, the laws of descent and distribution, or
qualified domestic relations order (as defined in the Plan) and, during
Optionee's lifetime, may be exercised only by Optionee or Optionee's guardian or
legal representative or the transferee pursuant to a qualified domestic
relations order. No assignment or transfer of the Option, whether voluntary,
involuntary, or by operation of law or otherwise, except by testamentary will,
the laws of descent and distribution, or qualified domestic relations order,
shall vest in the assignee or transferee any interest or right, but immediately
upon any attempt to assign or transfer the Option, the Option shall terminate
and be of no further force or effect.
5.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever the
word "Optionee" is used in any provision of this Agreement under circumstances
when the provision should logically be construed to apply to the Optionee's
guardian, legal representative, executor, administrator, or the person or
persons to whom the Option may be transferred by testamentary will, the laws of
descent and distribution, or qualified domestic relations order, the word
"Optionee" shall be deemed to include such person or persons.
6. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. Optionee shall not
be deemed for any purpose to be a shareholder of the Corporation with respect to
any Option Shares as to which the Option has not been exercised.
7. ADJUSTMENTS UPON RECAPITALIZATION OR REORGANIZATION.
7.1 RECAPITALIZATION. In the event of a material alteration
in the capital structure of the Corporation on account of a recapitalization,
stock split, reverse stock split, stock dividend or otherwise, the Option shall
be subject to adjustment by the Plan Administrator in accordance with the Plan.
7.2 REORGANIZATION. In the event of a reorganization as
defined in the Plan, the Option shall be assumed or an option substituted
therefor in accordance with the Plan.
8. MISCELLANEOUS PROVISIONS.
8.1 DISCLAIMER. Notwithstanding any other provision herein
to the contrary, Optionee acknowledges that the Corporation cannot, and does
not, guarantee that the Plan or the Option meets all the requirements of IRC
Section 422. Optionee hereby releases and discharges the Corporation, and its
successors, officers and directors, from any and all loss, liability or damage
that Optionee may incur in the event the Plan or the Option fails, for whatever
reason, to meet all the requirements of IRC Section 422.
8.2 WITHHOLDING OF ADDITIONAL INCOME TAXES. Upon the sale of
Option Shares, the Corporation, in accordance with the Code, may require
Optionee to pay additional withholding taxes in respect of the amount that is
considered compensation includible in Optionee's gross income.
8.3 DISPUTES. Any dispute or disagreement that may arise
under or as a result of this Agreement, or any question as to the interpretation
of this Agreement or the Plan, shall be determined by the Plan Administrator in
its absolute discretion, and any such determination shall be final, binding, and
conclusive on all affected persons.
8.4 DISPOSITION OF STOCK. Optionee understands that if
Optionee disposes of any Option Shares within two (2) years after the Date of
Grant or within one (1) year after such Option Shares were issued to Optionee,
Optionee may be treated for federal income tax purposes as having received
ordinary income at the time of such disposition in an amount equal to the fair
market value of the Option Shares at the time of exercise minus the price paid
for such shares. Optionee hereby agrees to notify the Corporation in writing
within 30 days after the date of any such disposition.
II-18
<PAGE> 4
8.5 GOVERNING LAW. This Agreement shall be administered,
interpreted and enforced under the internal laws of the State of Oregon, without
regard to conflicts of laws thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the Date of Grant.
OPTIONEE: CORPORATION:
IN FOCUS SYSTEMS, INC.
_________________________________ By:_____________________________________
_________________________________ Name: Susan L. Thompson
Title: Vice-President, Human Resources
II-19
<PAGE> 1
EXHIBIT 4.1.4
FORM OF EXECUTIVE NONSTATUTORY STOCK OPTION AGREEMENT
IN FOCUS SYSTEMS, INC.
EXECUTIVE NONSTATUTORY
STOCK OPTION AGREEMENT
In Focus Systems, Inc., an Oregon corporation (the
"Corporation"), through its Board of Directors or a Committee thereof (the "Plan
Administrator"), has granted to ____________ ("Optionee") an option (the
"Option") to purchase ____________ shares of the Corporation's Common Stock (the
"Option Shares") at a price of $__________ per share (the "Option Price"). The
Option has been granted to Optionee on __________, __________ (the "Grant
Date"), pursuant to the In Focus Systems 1998 Stock Incentive Plan (the "Plan").
1. NATURE OF THE OPTION
1.1 The Option is a nonstatutory option and is not
intended to qualify as an Incentive Stock Option as defined in Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
1.2 Except as expressly provided herein, the Option is
subject to the terms, definitions and provisions of the Plan, as it may be
amended from time to time. The terms defined in the Plan have the same meaning
in this Agreement.
2. DATE EXERCISABLE; VESTING.
2.1 Subject to the restrictions and conditions set
forth in the Plan, the Option shall become exercisable by Optionee as follows:
2.1.1 The Option shall become exercisable as to
twenty-five percent (25%) of the total number of Option Shares at the end of the
twelve (12) month period of Optionee's continuous employment with the
Corporation following the Grant Date.
2.1.2 The Option shall thereafter become
exercisable as to twenty-five percent (25%) of the total number of Option Shares
at the end of each subsequent twelve (12) month period of Optionee's continuous
employment with the Corporation.
2.1.3 The right to purchase any installment of the
Option Shares shall be cumulative, so that when the right to purchase any Option
Shares has accrued, such Option Shares may be purchased at any time or from time
to time thereafter prior to the Expiration Date, subject to the limitations of
Sections 3 and 4 herein.
2.2 In the event Optionee for any reason ceases to be
an employee of the Corporation, whether by dismissal, resignation, death,
disability or otherwise, the Option shall be exercisable thereafter only to the
extent Optionee was entitled to exercise it at the date of termination of
employment.
2.3 Notwithstanding Sections 2.1 or 2.2 above or any
other provision herein to the contrary, the Option shall become immediately
exercisable, without regard to any contingent vesting provision to which such
Option may otherwise be subject, in the event of the occurrence of a Change of
Control.
2.4 For purposes of this Agreement, a "Change of
Control" shall be deemed to have occurred upon the first fulfillment of the
conditions set forth in any one of the following four paragraphs:
2.4.1. Any "person" as such term is defined in
Section 3(a)(9) and 13(d)(3) of the Securities "Exchange Act of 1934, as amended
(the "Exchange Act"), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, is or becomes a beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act), directly
or indirectly, of securities of the Company, representing twenty-five percent
(25%) or more of the combined voting power of the Company's
II-20
<PAGE> 2
then outstanding securities; provided, that the foregoing shall not include a
person who acquires such securities, or a material portion thereof, as the
result of one or more transactions approved by the Company's Board of Directors;
or
2.4.2. A majority of the directors elected at any
Annual or special meeting of shareholders of the Company are not individuals
nominated by the Company's then incumbent Board of Directors; or
2.4.3. The shareholders of the Company approve a
reorganization, merger or consolidation of the Company with any other
corporation or entity, other than a reorganization, merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least fifty-one percent (51%) of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such reorganization, merger or consolidation; or
2.4.4. The shareholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of its assets.
3. EXERCISE OF OPTION.
3.1 MANNER OF EXERCISE. The Option may be exercised in
whole or in part by delivery to the Corporation, from time to time, of written
notice, signed by Optionee, specifying the number of Option Shares that Optionee
then desires to purchase, together with cash or check payable to the order of
the Corporation, or other form of payment acceptable to the Plan Administrator,
for an amount of United States dollars equal to the Option Price of such Option
Shares. The total number of dates on which Optionee exercises this Option, or
any other option granted by the Corporation to Optionee, shall not exceed four
(4) in any twelve (12) month period.
3.2 STOCK CERTIFICATES. As soon as practicable after
any exercise in whole or in part of the Option by Optionee, the Corporation
shall deliver to Optionee or, at Optionee's request, Optionee's designated
broker, a certificate or certificates for the number of shares of Stock with
respect to which the Option was so exercised, registered in Optionee's name.
4. DURATION OF OPTION. The Option, to the extent not previously
exercised, shall terminate upon the earliest of the following dates:
4.1 The date (10) years from the Grant Date (the
"Expiration Date");
4.2 Three (3) months after the date of Optionee's
termination of employment with the Corporation, in the event such termination is
for any reason other than Optionee's total disability (as defined in the Plan)
or death;
4.3 One year after Optionee's termination of
employment, if such termination is by reason of Optionee's total disability (as
defined in the Plan) or death;
4.4 The date of any sale, transfer or hypothecation,
or any attempted sale, transfer or hypothecation, of such Option in violation of
Section 5;
4.5 Upon the occurrence of any Terminating Event (as
defined in the Plan);
4.6 At the discretion of the Plan Administrator,
immediately upon determination by the Plan Administrator that the Optionee has
(i) made unauthorized disclosure of confidential information relating to the
Company, (ii) failed to assign to the Company any invention which the Optionee
is obligated to assign to the Company pursuant to written agreement or
otherwise, or (iii) breached the terms of any written agreement in effect
between the Company and the Optionee relating to confidentiality, nondisclosure
or ownership of inventions; or
II-21
<PAGE> 3
4.7 Immediately upon Optionee providing or agreeing to
provide services (whether as an employee, consultant, partner, shareholder,
member, director or otherwise) to any third-party engaged or proposing to engage
in the manufacture, distribution or development of data video projectors or
components thereof.
5. NONTRANSFERABILITY.
5.1 RESTRICTION. The Option is not transferable by
Optionee otherwise than by testamentary will, the laws of descent and
distribution, or qualified domestic relations order (as defined in the Plan)
and, during Optionee's lifetime, may be exercised only by Optionee or Optionee's
guardian or legal representative or the transferee pursuant to a qualified
domestic relations order. No assignment or transfer of the Option, whether
voluntary, involuntary, or by operation of law or otherwise, except by
testamentary will, the laws of descent and distribution, or qualified domestic
relations order, shall vest in the assignee or transferee any interest or right,
but immediately upon any attempt to assign or transfer the Option, the Option
shall terminate and be of no further force or effect.
5.2 EXERCISE IN EVENT OF DEATH OR DISABILITY. Whenever
the word "Optionee" is used in any provision of this Agreement under
circumstances when the provision should logically be construed to apply to the
Optionee's guardian, legal representative, executor, administrator, or the
person or persons to whom the Option may be transferred by testamentary will,
the laws of descent and distribution, or qualified domestic relations order, the
word "Optionee" shall be deemed to include such person or persons.
6. NO RIGHTS AS SHAREHOLDER PRIOR TO EXERCISE. Optionee shall not
be deemed for any purpose to be a shareholder of the Corporation with respect to
any Option Shares as to which the Option has not been exercised.
7. ADJUSTMENTS UPON RECAPITALIZATION OR REORGANIZATION.
7.1 RECAPITALIZATION. In the event of a material
alteration in the capital structure of the Corporation on account of a
recapitalization, stock split, reverse stock split, stock dividend or otherwise,
the Option shall be subject to adjustment by the Plan Administrator in
accordance with the Plan.
7.2 REORGANIZATION. In the event of a reorganization
as defined in the Plan, the Option shall be assumed or an option substituted
therefor in accordance with the Plan.
8. MISCELLANEOUS PROVISIONS.
8.1 TAXATION UPON EXERCISE OF OPTION. Optionee
understands that pursuant to certain provisions of the Code, upon exercise of
the Option, Optionee may recognize income for tax purposes in an amount equal to
the excess of the then fair market value of the Option Shares over the Option
Price. The Corporation may be required to withhold tax from Optionee's current
compensation with respect to such income; to the extent that Optionee's current
compensation is insufficient to satisfy the withholding tax liability, the
Company may require the Optionee to make a cash payment to cover such liability
as a condition of exercise of the Option.
8.2 DISPUTES. Any dispute or disagreement that may
arise under or as a result of this Agreement, or any question as to the
interpretation of this Agreement or the Plan, shall be determined by the Plan
Administrator in its absolute discretion, and any such determination shall be
final, binding, and conclusive on all affected persons.
8.3 GOVERNING LAW. This Agreement shall be
administered, interpreted and enforced under the internal laws of the State of
Oregon, without regard to conflicts of laws thereof.
II-22
<PAGE> 4
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the Date of Grant.
OPTIONEE: CORPORATION:
IN FOCUS SYSTEMS, INC.
By:
- ----------------------------- ----------------------------------------
Name: Susan L. Thompson
- ----------------------------- Title: Vice-President, Human Resources
II-23
<PAGE> 1
EXHIBIT 4.1.5
FORM OF RESTRICTED STOCK AGREEMENT
IN FOCUS SYSTEMS, INC.
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (this "Agreement") is made and
entered into as of April 22, 1998 (the "Match Date") by and between In Focus
Systems, Inc., an Oregon corporation (the "Corporation"), and ______________
("Participant").
WHEREAS, Participant is an elected or appointed officer or
director of the Corporation or one or more of its subsidiaries; and
WHEREAS, pursuant to the Officer and Director Stock Ownership
Program (the "Program") created under the Corporation's 1998 Stock Incentive
Plan (the "Plan"), the Board of Directors or a Committee thereof (the "Plan
Administrator") has approved the award to Participant of shares of the
Corporation's Common Stock ("Shares") on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants set forth herein, the parties hereto agree as follows:
1. AWARD.
1.1 Participant is the beneficial owner of that number
of Shares that were purchased by Participant between January 1, 1996 and the
Match Date as set forth on Schedule I hereto (the "Matched Shares").
1.2 For purposes of Section 1.1:
1.2.1 The term "beneficial owner" shall have the
same meaning given to that term for purposes of preparing the beneficial
ownership table in the Corporation's proxy statement for its annual meeting of
shareholders.
1.2.2 The term "purchase" shall mean any
acquisition of Shares pursuant to the exercise of any stock option awarded to
Participant under one or more stock option or incentive plans of the
Corporation, or any open market purchase that has been pre-approved by the
Compliance Officer.
1.3 The Corporation hereby awards to Participant, and
Participant hereby accepts, as of the Match Date, _________ Restricted Shares,
which represents one Restricted Share for every two Matched Shares, rounded up
to the nearest whole share. The Restricted Shares shall be subject to the terms
and conditions of this Agreement, and the terms and conditions set forth in the
Plan as the same may be amended from time to time.
2. VESTING.
2.1 Subject to the restrictions and conditions set
forth in the Plan, the Restricted Shares shall vest as follows:
2.1.1 Each Restricted Share granted pursuant to
this Agreement shall vest at the end of the three (3) year period, commencing on
the Match Date, of Participant's continuous service as an elected or appointed
officer or director of the Corporation; provided, however, that if Participant
does not continue to hold his or her Matched Shares throughout such period, the
portion of Participant's Restricted Shares (determined by the Plan Administrator
in its absolute discretion) that bears the same ratio as the Matched Shares that
Participant does not continue to hold during such period bears to the total
Matched Shares shall vest at the end of the nine (9) year period, commencing on
the Match Date, of Participant's continuous service as an elected or appointed
officer or director of the Corporation.
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<PAGE> 2
2.1.2 In the event Participant for any reason
ceases to serve as an elected or appointed officer or director of the
Corporation, whether by dismissal, resignation, disability or otherwise, all
unvested Restricted Shares shall be forfeited; provided, however, that in the
event Participant ceases to serve as an elected or appointed officer or director
of the Corporation by reason of such Participant's death, all unvested
Restricted Shares shall immediately vest.
2.1.3 Notwithstanding anything to the contrary in
this Section 2.1, all unvested Restricted Shares shall be forfeited immediately
upon determination by the Plan Administrator (in its absolute discretion) that
Participant has (i) made unauthorized disclosure of confidential information
relating to the Corporation, (ii) failed to assign to the Corporation any
invention which Participant is obligated to assign to the Corporation pursuant
to written agreement or otherwise, or (iii) breached the terms of any written
agreement in effect between the Corporation and Participant relating to
confidentiality, nondisclosure or ownership of inventions.
2.2 For purposes of Section 2.1:
2.2.1 Participant shall "continue to serve as an
elected or appointed officer or director of the Corporation" if Participant
remains an elected or appointed officer or director of the Corporation or its
subsidiaries at all times during the applicable period. Medical leave approved
by the Plan Administrator, in its absolute discretion, shall not be considered
an interruption of service for this purpose.
2.2.2 Participant shall "continue to hold" his or
her Restricted Shares if such Shares remain beneficially owned (as defined in
Section 1.2 hereof) by Participant at all times, and are not sold, assigned, or
pledged (as collateral for a loan, or as security for the performance of an
obligation, or for any other purpose) to any person at any time, during the
applicable period.
3. RESTRICTIONS. Until a Restricted Share vests pursuant to
Section 2.1 hereof, it shall not be liable for the debts, contracts or
engagements of Participant or successors in interest nor be subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance,
assignment or any other means whether such disposition be voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or
other legal or equitable proceeding (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect; provided, however,
that nothing in this Section 3 shall prevent transfers by will or by the
applicable laws of descent and distribution, or by qualified domestic relations
order (as defined in the Plan).
4. ACCELERATION OF VESTING.
4.1 The Plan Administrator, in its absolute discretion,
may accelerate the vesting of any or all of the Restricted Shares at any time
and for any reason.
4.2 Notwithstanding anything to the contrary in this
Agreement, any unvested Restricted Shares shall become fully vested immediately
prior to the consummation of a reorganization (as defined in Section 10.4 of the
Plan), which results in the voting securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) less than a majority of the combined voting power of the voting
securities of the Corporation or such surviving entity outstanding immediately
after such reorganization.
5. ESCROW.
5.1 Until a Restricted Share vests, (i) the record
address of the holder of record of such Restricted Share shall be c/o the
Secretary of the Corporation at the address of the Corporation's principal
executive office, (ii) the stock certificates representing such Restricted Share
shall be held in escrow in the custody of the Secretary of the Corporation, duly
endorsed in blank or accompanied by a duly executed stock powers, and (iii) such
stock certificate shall contain the following legend:
"THE TRANSFER AND REGISTRATION OF TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS AS
PROVIDED IN A RESTRICTED STOCK AGREEMENT DATED AS OF APRIL 22, 1998 BY
AND BETWEEN THE CORPORATION AND ___________________."
II-25
<PAGE> 3
5.2 As soon as practical after the date upon which a
Restricted Share vests and provided Participant shall have paid the Withholding
Liability to the Corporation pursuant to Section 7.1 hereof, the Corporation
shall deliver to Participant or, at Participant's request, Participant's
designated broker, a certificate or certificates representing such Restricted
Shares, registered in Participant's name, which certificate or certificates
shall not contain the legend set forth in Section 5.1 above.
6. RIGHTS AS SHAREHOLDER. The holder of record of any
Restricted Share shall be entitled to exercise all voting rights with respect to
such share and to receive all dividends or distributions paid or made with
respect thereto.
7. MISCELLANEOUS PROVISIONS.
7.1 INCOME TAX WITHHOLDING. If the Corporation becomes
obligated to withhold an amount on account of any tax imposed in connection with
an award of Restricted Shares pursuant to this Agreement, including without
limitation, any federal, state, local or other income taxes, or any FICA, state
disability insurance tax or other employment tax, then Participant shall, on the
date the restrictions on the Restricted Shares lapse (or, if earlier, the date
that Participant makes an election under Section 83(b) of the Internal Revenue
Code, if any, or such other the date upon which the Corporation becomes so
obligated to withhold (the "Withholding Date")) pay such amount (the
"Withholding Liability") to the Corporation in cash or check payable to the
Corporation. Participant hereby consents to the Corporation withholding the full
amount of the Withholding Liability from any compensation or other amounts
otherwise payable to Participant (including, without limitation, any vested
Restricted Shares) if Participant does not pay the Withholding Liability to the
Company on the Withholding Date, and Participant agrees that the withholding and
payment of any such amount by the Corporation to the relevant taxing authorities
shall constitute full satisfaction of the Corporation's obligation to pay such
compensation of other amounts to Participant.
7.2 TAXABLE INCOME AND SECTION 83(b) ELECTION.
Participant understands that the taxable income recognized by Participant as a
result of the award of Restricted Shares hereunder, and the Withholding
Liability and Withholding Date with respect thereto, would be affected by a
decision by Participant to make an election under Section 83(b) of the Internal
Revenue Code of 1986, as amended (an "83(b) Election"), with respect to the
Restricted Shares within thirty (30) days of the Match Date. Participant
understands and agrees that he or she will have the sole responsibility for
determining whether to make an 83(b) Election with respect to the Restricted
Shares, and for properly making such election and filing the election with the
relevant taxing authorities on a timely basis. Participant will not rely on the
Corporation for any advice in connection with the decision whether to make, or
procedures for making, an 83(b) Election with respect to the Restricted Shares.
Participant agrees to submit to the Corporation a copy of any 83(b) Election
with respect to the Restricted Shares immediately upon filing such election with
the relevant taxing authorities.
7.3 DISPUTES. Any dispute or disagreement that may
arise under or as a result of this Agreement, or any question as to the
interpretation of this Agreement, the Program or the Plan, shall be determined
by the Plan Administrator in its absolute discretion, and any such determination
shall be final, binding, and conclusive on all affected persons.
7.4 GOVERNING LAW. This Agreement shall be
administered, interpreted and enforced under the internal laws of the State of
Oregon, without regard to conflicts of laws thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the Match Date.
PARTICIPANT: CORPORATION:
IN FOCUS SYSTEMS, INC.
By:
- ------------------------------- --------------------------------
Name: Susan L. Thompson
- ------------------------------- Title: Vice-President, Human Resources
II-26
<PAGE> 1
EXHIBIT 5
May 20, 1998
In Focus Systems Inc.
27700B S.W. Parkway Avenue
Wilsonville, Oregon 97070
Gentlemen:
We have acted as counsel for In Focus Systems, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, covering
1,500,000 shares of common stock, (the "Shares") of the Company issuable under
the In Focus Systems, Inc. 1998 Stock Incentive Plan (the "1998 Plan").
We have reviewed those documents, corporate records, and other
instruments we deemed necessary for the purposes of this opinion. As to matters
of fact which have not been independently established, we have relied upon
representations of officers of the Company.
Based on the foregoing, it is our opinion that, under the corporate laws
of the State of Oregon, the Shares offered and to be offered by the Company
under the 1998 Plan have been duly authorized under the Company's Amended and
Restated Articles of Incorporation and, when issued by the Company pursuant to
the terms of the 1998 Plan and, in the case of options granted thereunder, upon
payment therefor, will be validly issued, fully paid and nonassessable
securities of the Company.
This opinion is dated as of the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this opinion under Item 5 in the
Registration Statement.
Sincerely,
GARVEY, SCHUBERT & BARER
/s/ Garvey, Schubert & Barer
II-27
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 covering
the registration of 1,500,000 shares of In Focus Systems, Inc. common stock of
our reports dated January 22, 1998, included in the In Focus Systems, Inc.
Annual Report on Form 10-K for the year ended December 31, 1997 and to all
references to our firm included in this Registration Statement.
Arthur Andersen LLP
/s/ Arthur Andersen LLP
- --------------------------
Portland, Oregon
May 18, 1998
II-28
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY OF PETER D. BEHRENDT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Peter D. Behrendt,
hereby constitutes and appoints Michael D. Yonker or John V. Harker, his true
and lawful attorney-in-fact and agent, for him and his name, place and stead, in
any and all capacities, to sign the Registration Statement on Form S-8 of In
Focus Systems, Inc., an Oregon corporation, and any amendments or supplements
thereto, and to file this Power of Attorney and the Form S-8, with all exhibits
thereto, and other documents in connection therewith with the Securities and
Exchange Commission and the Nasdaq National Market System, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent may do or
cause to be done by virtue hereof.
Dated this 12th day of May, 1998.
Signature:
/s/ Peter D. Behrendt
- ------------------------
Peter D. Behrendt
II-29
<PAGE> 1
EXHIBIT 24.2
POWER OF ATTORNEY OF MICHAEL R. HALLMAN
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Michael R.
Hallman, hereby constitutes and appoints Michael D. Yonker or John V. Harker,
his true and lawful attorney-in-fact and agent, for him and his name, place and
stead, in any and all capacities, to sign the Registration Statement on Form S-8
of in Focus Systems, Inc., an Oregon corporation, and any amendments or
supplements thereto, and to file this Power of Attorney and the Form S-8, with
all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission and the Nasdaq National Market System,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
may do or cause to be done by virtue hereof.
Dated this 13th day of May, 1998.
Signature:
/s/ Michael R. Hallman
- --------------------------
Michael R. Hallman
II-30
<PAGE> 1
EXHIBIT 24.3
POWER OF ATTORNEY OF NOBUO MII
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, Nobuo Mii, hereby
constitutes and appoints Michael D. Yonker or John V. Harker, his true and
lawful attorney-in-fact and agent, for him and his name, place and stead, in any
and all capacities, to sign the Registration Statement on Form S-8 of In Focus
Systems, Inc., an Oregon corporation, and any amendments or supplements thereto,
and to file this Power of Attorney and the Form S-8, with all exhibits thereto,
and other documents in connection therewith with the Securities and Exchange
Commission and the Nasdaq National Market System, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent may do or
cause to be done by virtue hereof.
Dated this 13th day of May, 1998.
Signature:
/s/ Nobuo Mii
- ---------------------
Nobuo Mii
II-31
