-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FEg2lxEZdRs0JXs9zqFwtcaDCan5B+lPP9kwpVUBQ6J5Ye1fFyMRtlJq1/viVwIy s9pGYrY2iTriRco2vR67cw== 0001047469-98-019387.txt : 19980513 0001047469-98-019387.hdr.sgml : 19980513 ACCESSION NUMBER: 0001047469-98-019387 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19980331 FILED AS OF DATE: 19980512 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: IN FOCUS SYSTEMS INC CENTRAL INDEX KEY: 0000845434 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 930932102 STATE OF INCORPORATION: OR FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 000-18908 FILM NUMBER: 98616365 BUSINESS ADDRESS: STREET 1: 27700B SW PARKWAY AVE CITY: WILSONVILLE STATE: OR ZIP: 97070 BUSINESS PHONE: 5036858888 MAIL ADDRESS: STREET 1: 27700B SW PARKWAY AVE CITY: WILSONVILLE STATE: OR ZIP: 97070 10-Q 1 FORM 10-Q UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM 10-Q ------------------------ (Mark One) [X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended March 31, 1998 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from ______ to ____ Commission file number 000-18908 ------------------------ 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 SW Parkway Avenue, Wilsonville, Oregon 97070 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: 503-685-8888 ------------------------ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No ----- ----- Indicate the number of shares outstanding of each of the issuer's classes of common stock, as of the latest practicable date. Common stock without par value 22,197,341 (Class) (Outstanding at April 29, 1998) IN FOCUS SYSTEMS, INC. FORM 10-Q INDEX
PART I - FINANCIAL INFORMATION Page - ------------------------------ ---- Item 1. Financial Statements Consolidated Balance Sheets - March 31, 1998 and December 31, 1997 2 Consolidated Statements of Operations - Three Months Ended March 31, 1998 and 1997 3 Consolidated Statements of Cash Flows - Three Months Ended March 31, 1998 and 1997 4 Notes to Consolidated Financial Statements 5 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations 6 Item 3. Quantitative and Qualitative Disclosures About Market Risk 9 PART II - OTHER INFORMATION - --------------------------- Item 6. Exhibits and Reports on Form 8-K 9 Signatures 10
1 IN FOCUS SYSTEMS, INC. CONSOLIDATED BALANCE SHEETS (In thousands, except share amounts)
March 31, December 31, 1998 1997 --------- ------------ ASSETS Current Assets: Cash and cash equivalents $ 18,528 $ 37,950 Marketable securities - held to maturity 10,521 7,220 Accounts receivable, net of allowances of $4,674 76,245 87,845 and $4,835 Inventories, net 50,518 32,120 Income taxes receivable 2,703 310 Deferred income taxes 1,247 1,247 Other current assets 2,964 2,589 -------- -------- Total Current Assets 162,726 169,281 Marketable securities - held to maturity 6,505 3,500 Property and equipment, net of accumulated depreciation of $24,435 and $21,769 15,099 15,507 Deferred income taxes 516 516 Other assets, net 2,134 1,104 -------- -------- Total Assets $ 186,980 $ 189,908 -------- -------- -------- -------- LIABILITIES AND SHAREHOLDERS' EQUITY Current Liabilities: Accounts payable $ 46,474 $ 47,818 Payroll and related benefits payable 2,043 3,493 Marketing cooperative payable 1,543 1,176 Other current liabilities 4,301 4,392 -------- -------- Total Current Liabilities 54,361 56,879 Shareholders' Equity: Common stock, 30,000,000 shares authorized; shares issued and outstanding: 22,186,693 and 21,931,728 53,677 51,733 Additional paid-in capital 12,320 11,278 Retained earnings 66,622 70,018 -------- -------- Total Shareholders' Equity 132,619 133,029 -------- -------- Total Liabilities and Shareholders' Equity $ 186,980 $ 189,908 -------- -------- -------- --------
The accompanying notes are an integral part of these balance sheets. 2 IN FOCUS SYSTEMS, INC. CONSOLIDATED STATEMENTS OF OPERATIONS (In thousands, except share amounts)
Three months ended March 31, 1998 1997 ------- ------- Revenue $ 70,474 $ 64,764 Cost of sales 56,368 45,997 ------- ------- Gross profit 14,106 18,767 Operating expenses: Marketing and sales 11,202 6,964 Engineering 5,940 3,998 General and administrative 2,160 1,766 ------- ------- 19,302 12,728 ------- ------- Income (loss) from operations (5,196) 6,039 Other income (expense): Interest expense - (17) Interest income 311 515 Other, net 41 32 ------- ------- 352 530 ------- ------- Income (loss) before (provision for) benefit from income taxes (4,844) 6,569 (Provision for) benefit from income taxes 1,448 (2,169) ------- ------- Net income (loss) (3,396) 4,400 ------- ------- ------- ------- Basic net income (loss) per share $ (0.15) $ 0.21 ------- ------- ------- ------- Diluted net income (loss) per share $ (0.15) $ 0.20 ------- ------- ------- -------
The accompanying notes are an integral part of these statements. 3 IN FOCUS SYSTEMS, INC. CONSOLIDATED STATEMENTS OF CASH FLOWS (In thousands, except share amounts)
Three months ended March 31, 1998 1997 ------- ------- Cash flows from operating activities: Net income (loss) $ (3,396) $ 4,400 Adjustments to reconcile net income (loss) to net cash flows provided by (used in) operating activities: Depreciation and amortization 2,672 2,108 Other non-cash (income) expense (18) 4 (Increase) decrease in: Accounts receivable, net 11,600 (573) Inventories, net (18,398) (6,009) Income taxes receivable (2,393) 1,305 Other current assets (375) (1,279) Increase (decrease) in: Income taxes payable - 656 Accounts payable (1,344) 7,350 Payroll and related benefits payable (1,450) (303) Marketing cooperative payable 367 (810) Other current liabilities (91) (419) ------- ------- Net cash provided by (used in) operating activities (12,826) 6,430 Cash flows from investing activities: Purchase of marketable securities-held to maturity (7,806) (2,498) Maturity of marketable securities-held to maturity 1,500 2,261 Payments for purchase of property and equipment (2,257) (2,023) Other assets, net (1,019) 279 ------- ------- Net cash used in investing activities (9,582) (1,981) Cash flows from financing activities: Proceeds from sale of common stock 1,944 942 Income tax benefit of non-qualified stock option exercises and disqualifying dispositions 1,042 353 ------- ------- Net cash provided by financing activities 2,986 1,295 Increase (decrease) in cash and cash equivalents (19,422) 5,744 Cash and cash equivalents: Beginning of period 37,950 33,935 ------- ------- End of period $ 18,528 $ 39,679 ------- ------- ------- -------
The accompanying notes are an integral part of these statements. 4 IN FOCUS SYSTEMS, INC. NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) (UNAUDITED) NOTE 1. BASIS OF PRESENTATION The financial information included herein for the three-month periods ended March 31, 1998 and 1997 is unaudited; however, such information reflects all adjustments consisting only of normal recurring adjustments which are, in the opinion of management, necessary for a fair presentation of the financial position, results of operations and cash flows for the interim periods. The financial information as of December 31, 1997 is derived from In Focus Systems, Inc.'s (the Company's) 1997 Annual Report on Form 10-K. The interim consolidated financial statements should be read in conjunction with the consolidated financial statements and the notes thereto included in the Company's 1997 Annual Report on Form 10-K. The results of operations for the interim periods presented are not necessarily indicative of the results to be expected for the full year. NOTE 2. INVENTORIES Inventories are valued at the lower of cost (using average costs, which approximates the first in, first-out (FIFO) method), or market, and include materials, labor and manufacturing overhead.
March 31, 1998 December 31, 1997 -------------- ----------------- Raw materials and components $11,818 $11,774 Work-in-process 1,408 2,240 Finished goods 37,292 18,106 ------- ------- $50,518 $32,120 ------- ------- ------- -------
NOTE 3. SUPPLEMENTAL CASH FLOW INFORMATION Supplemental disclosure of cash flow information is as follows:
Three Months Ended March 31, 1998 1997 -------- -------- Cash paid during the period for income taxes $154 $86 Cash paid during the period for interest - 16
NOTE 4. EARNINGS PER SHARE Beginning December 31, 1997, basic earnings per share (EPS) and diluted EPS are computed using the methods prescribed by Statement of Financial Accounting Standard No. 128, EARNINGS PER SHARE (SFAS 128). Basic EPS is calculated using the weighted average number of common shares outstanding for the period and diluted EPS is computed using the weighted average number of common shares and dilutive common equivalent shares outstanding. Prior period amounts have been restated to conform with the presentation requirements of SFAS 128. 5 Following is a reconciliation of basic EPS and diluted EPS:
Three Months Ended March 31, 1998 1997 - ---------------------------- ----------------------------------- ------------------------------- Per Per BASIC EPS Share Share Income Shares Amount Income Shares Amount Income (loss) available to Common Shareholders $ (3,396) 22,041 $ (0.15) $4,400 21,487 $ 0.21 --------- ------ DILUTED EPS Effect of dilutive stock options - - - 626 --------------------- ----------------- Income (loss) available to Common Shareholders $ (3,396) 22,041 $ (0.15) $4,400 22,113 $ 0.20 --------- ------
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS FORWARD LOOKING STATEMENTS Statements in this Form 10-Q which the Company considers to be forward-looking are denoted with an *, and the following cautionary language applies to all such statements, as well as any other statements in this Form 10-Q which the reader may consider to be forward-looking in nature. Investors are cautioned that all forward-looking statements involve risks and uncertainties and several factors could cause actual results to differ materially from those in the forward-looking statements. The Company, from time to time, may make forward-looking statements relating to anticipated gross margins, availability of products manufactured on behalf of the Company, backlog, new product introductions and future capital expenditures. The following factors, among others, could cause actual results to differ from those indicated in the forward-looking statements: 1) in regard to gross margins, uncertainties associated with market acceptance of and demand for the Company's products, impact of competitive products and their pricing and dependence on third party suppliers; 2) in regard to product availability and backlog, uncertainties associated with manufacturing capabilities and dependence on third party suppliers; 3) in regard to new product introductions, uncertainties associated with the development of technology and the establishment of full manufacturing capabilities, dependence on third party suppliers and intellectual property rights; and 4) in regard to future capital expenditures, uncertainties associated with new product introductions. RESULTS OF OPERATIONS Revenue increased to $70.4 million in the first quarter of 1998 compared to $64.8 million in the first quarter of 1997, but decreased from $96.8 million in the fourth quarter of 1997. The Company's revenue in the first quarter of 1998 was derived virtually 100 percent from products manufactured in-house, 69 percent of which were products that were introduced within the last six months. The Company's revenues, and financial performance, were adversely affected in the first quarter of 1998 by the following factors: 1) quarter end order rates in the North American audio visual dealer and two tier wholesale channels fell significantly from historical quarter ending order rates; 2) inventory levels increased in the reseller channels due to slower sell through; and 3) extremely aggressive competitive pricing in the conference room and personal projector market segments. 6 The Company introduced and began shipping three new products in the first quarter of 1998: 1) the LP225, a low cost SVGA amorphous TFT projector aimed at the education and low end business markets; 2) the LP725, a high bright 750 lumen, 12 pound SVGA polysilicon projector aimed at the conference room environment; and 3) the LP740, the industry's first reflective silicon based SXGA projector aimed at super high-resolution business applications. During the first quarter of 1998, International sales represented 57 percent of total revenue, including 13 percent from Asia Pacific countries, compared to 46 percent international revenue in the first quarter of 1997. The Asian market grew at the same rate as the industry as a whole during 1997 and it is now the third largest market in the Company's industry. The Company has historically had very little market share in the Asian market and sees the growth in the Asian market as an opportunity to expand its revenue base in Japan and China.* Sales to most Asian companies have been, and continue to be, prepaid or guaranteed by letters of credit, thereby reducing receivables risk. The Company has a sales, service and support branch office in Singapore, but no operating subsidiaries in Asian countries. The data video projector industry has experienced 20 to 25 percent average sales price (ASP) reductions per year over the last two years. Many of the Company's competitors are headquartered in Japan. The Company expects similar ASP reductions to occur in the industry in 1998.* Late in the first quarter of 1998, a series of increasingly competitive price reductions from a number of its competitors caused the Company to adjust its pricing downward, beyond original expectations for the first quarter, in order to stimulate orders. The Company's parts contracts with Asian companies are denoted in U.S. dollars and contain clauses for price adjustments when there are significant fluctuations in currency rates. Accordingly, for purchases beginning the first day of the next quarter, parts costs are adjusted based upon changes in local currencies relative to the U.S. dollar. Because there are multiple competitive products for the Company's resellers to choose from, the Company does not operate with a large backlog. Instead, the Company's customers generally order products for immediate delivery and the Company must respond to competitive prices and ship the product quickly or risk losing the order. However, as a result of orders from customers on credit hold and orders for newly introduced products, at March 31, 1998, the Company had backlog of approximately $24.0 million, compared to approximately $8.6 million at March 31, 1997 and $14.9 million at December 31, 1997. Given current supply and demand estimates, it is anticipated that a majority of the current backlog will turn over by the end of the second quarter of 1998.* There is minimal seasonal influence relating to the Company's order backlog. The stated backlog is not necessarily indicative of Company sales for any future period nor is a backlog any assurance that the Company will realize a profit from filling the orders. The Company achieved gross margins of 20.0 percent in the first quarter of 1998 compared to 29.0 percent in the first quarter of 1997 and 27.6 percent in the fourth quarter of 1997. The decreases are primarily attributable to: 1) an aggressive competitive pricing environment; 2) lower product mix of higher margin products; 3) accelerated price 7 reductions to end of life the LP720 and LP730; 4) price protection to help product sell through in the channel; and 5) reduced product shipments contributing to higher fixed costs per unit. The Company expects the competitive pricing environment will continue for the foreseeable future.* Accordingly, the Company is continuing its ongoing efforts to reduce manufacturing costs by working closely with its suppliers to reduce direct material costs, designing products with extensible platforms that use new and lower cost technologies and manufacturing higher volume products offshore. In addition, the Company continues to focus on adding value to projectors that use its own engine designs in order to become less reliant on more expensive out-sourced engines. Marketing and sales expense increased to $11.2 million (15.6 percent of revenue) in the first quarter of 1998 compared to $7.0 million (10.8 percent of revenue) in the first quarter of 1997. The increase is primarily a result of expenditures in the first quarter of 1998 to build demand for the LP420 in two-tier wholesale distribution and adding sales and service infrastructure around the world, particularly in Europe and Japan. Engineering expense increased to $5.9 million (8.4 percent of revenue) in the first quarter of 1998 from $4.0 million (6.2 percent of revenue) in the first quarter of 1997. This increase is primarily a result of timing for new product releases under development as well as a restructuring charge in the first quarter of 1998 in order to create a more efficient organization. General and administrative expense increased to $2.2 million (3.1 percent of revenue) in the first quarter of 1998 from $1.8 million (2.7 percent of revenue) in the first quarter of 1997. The increase is primarily attributable to a restructuring charge taken during the first quarter of 1998. The total restructuring charge in the first quarter of 1998 was approximately $1.1 million. Loss from operations was $5.2 million in the first quarter of 1998 compared to income from operations of $6.0 million (9.3 percent of revenue) in the first quarter of 1997, as a result of decreased sales and gross margins and the increased operating expenses as indicated above. Income taxes are based on an estimated rate of 29.9 percent compared to 32.9 percent in the first quarter of 1997 and 29.1 percent for the year ended December 31, 1997. The decrease from the first quarter of 1997 is primarily a result of a larger benefit related to the Company's foreign sales corporation. LIQUIDITY AND CAPITAL RESOURCES At March 31, 1998 working capital was $108.4 million, including $18.5 million of cash and cash equivalents and $10.5 million of marketable securities. In the first quarter of 1998, working capital decreased by $4.0 million and the current ratio remained constant at 3.0:1 at March 31, 1998 and December 31, 1997. Cash and cash equivalents decreased $19.4 million primarily due to cash used in operations of $12.8 million, the net purchase of $6.3 million of marketable securities and $2.3 million for purchases of property and equipment, offset by $1.9 million provided by the sale of common stock through the exercise of 8 employee stock options and $1.0 million provided by the income tax benefit of non-qualified stock option exercises and disqualifying dispositions. Accounts receivable decreased $11.6 million to $76.2 million at March 31, 1998 compared to $87.8 million at December 31, 1997 primarily as a result of lower than expected shipments in March 1998; accordingly cash receipts exceeded revenues for the quarter and receivables decreased. The Company's day's sales outstanding increased to 98 days at March 31, 1998 compared to 81 days at December 31, 1997 as a result of lower average sales per day in the first quarter of 1998 combined with slower than expected cash receipts from the Company's channel partners. At March 31, 1998, 77 percent of the Company's accounts receivable were current, 9 percent were 30 days or less past due and 14 percent were beyond 30 days past due. Inventories increased $18.4 million to $50.5 million at March 31, 1998 from $32.1 million at December 31, 1997 primarily due to an increase in finished goods as a result of lower than anticipated shipments in March 1998 and, to a lesser degree, new product introduction delays late in the quarter. As a result of the above, annualized inventory turns were approximately 5.5 times for the quarter ended March 31, 1998 compared to approximately 10.4 times for the fourth quarter of 1997 on an annualized basis. The $2.3 million of purchases of property, plant and equipment were primarily for new product tooling, engineering design and test equipment and information systems infrastructure. Total expenditures for property and equipment in 1998 are expected to total approximately $10.0 million, primarily for new product tooling, operations and quality test equipment and information systems infrastructure.* FACTORS THAT MAY EFFECT FUTURE RESULTS OF OPERATIONS The Company has begun the process of making organizational changes that include a 10 percent executive pay cut, a closing of the slides manufacturing portion of the Genigraphics business and several other cost containment measures. These actions resulted in the Company laying off 12 percent of its workforce, thereby reducing annual compensation by approximately $2.8 million and reducing operating expenses by approximately $2.5 million per quarter going forward.* ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK None. PART II - OTHER INFORMATION ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (a) Exhibits The exhibits filed as a part of this report are listed below and this list is intended to constitute the exhibit index. EXHIBIT NO. 3 1990 Restated Articles of Incorporation 10 In Focus Systems, Inc. 1998 Stock Incentive Plan 27.1 Financial Data Schedule 27.2 Financial Data Schedule 27.3 Financial Data Schedule (b) Reports on Form 8-K There were no reports on Form 8-K filed during the quarter ended March 31, 1998. 9 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Date: April 29, 1998 IN FOCUS SYSTEMS, INC. By: /s/ John V. Harker ------------------------------- John V. Harker Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) By: /s/ Michael D. Yonker ------------------------------- Michael D. Yonker Vice President, Information Services, Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) 10 EX-3 2 EXHIBIT 3 EXHIBIT 3 1990 RESTATED ARTICLES OF INCORPORATION OF IN FOCUS SYSTEMS, INC. Pursuant to the Oregon Business Corporation Act, the undersigned corporation adopts the following 1990 Restated Articles of Incorporation, EFFECTIVE DECEMBER 29, 1990 AT 12:01 A.M., which shall supersede the original Articles of Incorporation and all prior amendments and restatements thereto. ARTICLE I The name of this Corporation is IN FOCUS SYSTEMS, INC. and its duration shall be perpetual. ARTICLE II The Corporation is organized for purposes of: (1) Developing, manufacturing, and marketing visual display and presentation products utilizing state-of-the-art liquid crystal display technology; and (2) Engaging in any other lawful activity for which corporations may be organized under the Oregon Business Corporation Act. ARTICLE III The aggregate number of shares which the Corporation shall have authority to issue is 30,000,000 shares of Common Stock. ARTICLE IV The address of the registered office of the Corporation is: 121 S.W. Morrison Eleventh Floor Page 1 - 1990 Restated Articles of Incorporation Portland, Oregon 97204 and the name of its registered agent at such address is Stephen J. Connolly. ARTICLE V The address where the Division may mail notices: Stephen J. Connolly, Esq. 121 S.W. Morrison Eleventh Floor Portland, Oregon 97204 ARTICLE VI To the fullest extent permitted by the Oregon Business Corporation Act, as it exists on the date hereof or may hereafter be amended or be restricted by other applicable law then in effect, this Corporation shall indemnify any person who has been made, or is threatened to be made, a party to an action, suit, or proceeding, whether civil, criminal, administrative, investigative, or otherwise (including an action, suit, or proceeding by or in the right of the Corporation) by reason of the fact that the person is or was a director or officer of the Corporation, or a fiduciary within the meaning of the Employee Retirement Income Security Act of 1974 with respect to any employee benefit plan of the Corporation, or serves or served at the request of the Corporation as a director or officer, or as a fiduciary of an employee benefit plan, of another corporation, partnership, joint venture, trust, or other enterprise. This Article VI shall not be deemed exclusive of any other provisions for indemnification of directors, officers and fiduciaries that may be included in any statute, bylaw, agreement, resolution of shareholders or directors or otherwise, both as to action in any official capacity and action in another capacity while holding office. ARTICLE VII The Corporation elects to waive preemptive rights and no shareholder shall have any preemptive or preferential right Page 2 - 1990 Restated Articles of Incorporation to subscribe to or otherwise acquire any shares of stock of the Corporation, or any obligations or securities convertible into or carrying options or warrants to purchase shares of stock of the Corporation, whether now or hereafter authorized and whether or not the issuance or sale of any such shares, obligations, or securities would adversely affect such shareholder's proportionate voting power, other than such rights, if any, as the Board of Directors in its discretion from time to time may grant, and at such price as the Board of Directors may fix. ARTICLE VIII No director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for conduct as a director, provided that this Article VIII shall not eliminate the liability of a director for any act or omission for which such elimination of liability is not permitted under the Oregon Business Corporation Act. No amendment to the Oregon Business Corporation Act that further limits the acts or omissions for which elimination of liability is permitted shall affect the liability of a director for any act or omission which occurs prior to the effective date of such amendment. The undersigned officer declares under penalty of perjury that he has examined the foregoing and, to the best of his knowledge and belief, it is true, correct and complete. DATED this 28th day of December, 1990, effective December 29, 1990 at 12:01 a.m. IN FOCUS SYSTEMS, INC. By: /s/ ------------------------------------ Joseph I. Martin, Secretary Person to contact about this filing: Page 3 - 1990 Restated Articles of Incorporation Stephen J. Connolly, Esq. GARVEY, SCHUBERT & BARER 121 S.W. Morrison Eleventh Floor Portland, Oregon 97204 Telephone: (503) 228-3939 Page 4 - 1990 Restated Articles of Incorporation EXHIBIT A TO 1990 RESTATED ARTICLES OF INCORPORATION OF IN FOCUS SYSTEMS, INC. Article III of the 1990 Restated Articles of Incorporation of In Focus Systems, Inc. is amended to read as follows: ARTICLE III THE AGGREGATE NUMBER OF SHARES WHICH THE CORPORATION SHALL HAVE AUTHORITY TO ISSUE IS 50,000,000 SHARES OF COMMON STOCK. EX-10 3 EXHIBIT 10 EXHIBIT 10 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 1 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". 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. 2 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"); 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; 3 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 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 4 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 5 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. 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. 6 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 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. 7 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 8 Company; or (b) a material 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. 9 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 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 10 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 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 11 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. 12 EX-27.1 4 EXHIBIT 27.1 FDS
5 1,000 3-MOS DEC-31-1998 JAN-01-1998 MAR-31-1998 18,528 17,026 80,919 4,674 50,518 162,726 39,534 24,435 186,980 54,361 0 0 0 53,677 78,942 186,980 70,474 70,474 56,368 56,368 19,302 0 0 (4,844) (1,448) (3,396) 0 0 0 (3,396) (0.15) (0.15)
EX-27.2 5 EXHIBIT 27.2 FDS
5 1,000 6-MOS 9-MOS YEAR DEC-31-1996 DEC-31-1996 DEC-31-1996 JAN-01-1996 JAN-01-1996 JAN-01-1996 JUN-30-1996 SEP-30-1996 DEC-31-1996 19,418 6,645 33,935 20,326 17,939 4,263 61,761 54,839 59,231 3,301 2,892 3,942 26,785 27,147 22,715 133,892 111,911 122,188 26,098 15,465 28,245 10,685 11,996 13,692 133,892 111,9111 138,250 41,671 25,664 29,079 0 352 738 0 0 0 0 0 0 49,535 47,421 47,912 59,217 55,045 60,048 151,030 129,087 138,250 126,267 185,347 258,475 126,267 185,347 258,475 89,531 132,649 185,313 89,531 132,649 185,313 29,282 42,046 56,232 255,734 300 1,040 0 11 45 8,507 12,040 18,422 3,020 4,168 5,622 5,843 8,221 13,132 0 0 0 0 0 0 0 0 0 5,843 8,221 13,132 0.27 0.38 0.60 0.25 0.36 0.58
EX-27.3 6 EXHIBIT 27.3 FDS
5 1,000 3-MOS 6-MOS 9-MOS DEC-31-1997 DEC-31-1997 DEC-31-1997 JAN-01-1997 JAN-01-1997 JAN-01-1997 MAR-31-1997 JUN-30-1997 SEP-30-1997 36,679 45,858 49,008 4,500 5,899 3,900 59,453 58,899 69,421 3,591 3,683 3,067 28,724 24,388 21,805 134,725 136,721 147,301 14,553 31,833 34,039 15,769 17,062 19,254 150,473 154,050 164,581 35,553 33,685 40,473 792 844 0 0 0 0 0 0 0 48,854 49,404 49,768 64,801 69,699 73,859 150,473 154,050 164,581 64,764 139,358 218,917 64,764 139,358 218,917 45,997 100,988 160,344 45,977 100,988 160,344 12,728 26,278 40,926 7 20 (178) 17 31 70 6,573 13,070 19,038 2,169 3,798 5,603 4,400 9,249 13,435 0 0 0 0 0 0 0 0 0 4,400 9,249 13,435 0.21 0.43 0.63 0.20 0.42 0.61
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