EXHIBIT 10.9
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 Xxxx X. Xxxxxx ("Optionee") an option (the
"Option") to purchase 39,996 shares of the Corporation's Common Stock (the
"Option Shares") at a price of $4.313 per share (the "Option Price"). The
Option has been granted to Optionee on October 14, 1998 (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.
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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 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.
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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 as an employee, consultant, partner, shareholder, member,
director or
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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 fair
market value of the Option Shares at the time of exercise minus the price paid
for such shares. The Corporation may be required to
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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:
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Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxx
Chairman of the Board, President Title: Vice-President, Human Resources
and Chief Executive Officer
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