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EXHIBIT 99.3
JANUS TECHNOLOGIES, INC.
1997 STOCK OPTION PLAN
1. PURPOSE.
The primary purpose of this 1997 Stock Option Plan (the "Plan") is to
motivate and provide an incentive for employees of Janus Technologies, Inc. (the
"Company") and any subsidiaries of the Company (the "Subsidiaries") to exert
their best efforts on behalf of their employer. By enabling and encouraging such
individuals to acquire a greater stock interest in the Company, thereby
increasing their proprietary interest in the business, the Company hopes to
encourage their continued service and, as a consequence, advance the interests
of the Company and all its stockholders.
Two secondary purposes exist - aiding the Company's recruitment and
retention of key personnel and, by issuance of options to nonemployees,
enhancing business relationships.
2. DEFINITIONS.
(a) "Board" - the Board of Directors of the Company.
(b) "Fair Market Value" - the fair market value per share of
stock on a given date shall be determined by the Board with full authority and
discretion, taking into account all factors customarily considered in
determining fair market value.
(c) "Options" - grants of options to purchase shares of the
Company's Common Stock under the Plan. Options may be Incentive Stock Options,
granted pursuant to Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"), or may be Non-Qualified Stock Options. A corresponding Option
Agreement shall specify whether the Participant has been granted an Incentive
Stock Option or a Non-Qualified Stock Option.
(d) "Option Right" - the right to purchase a share of Common
Stock upon exercise of an Outstanding Option.
(e) "Outstanding Option" - at any time, an Option granted by
the Company pursuant to the Plan, whether or not such Option is at such time
exercisable, to the extent that such Option at such time has not been exercised
and has not terminated.
(f) "Participants" - persons to whom Options have been granted
under the Plan, including employees of the Company or any Subsidiary ("Employee
Participants") as well as nonemployees ("Nonemployee Participants"). When
appropriate, the term "Participant" shall also be deemed to refer to the
successor or assignee of a Participant including, a Participant's legal
representative.
(g) "Employee", "outstanding" and "subsidiary corporation"
have the meanings assigned to them in Section 422 or 424 of the Code.
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3. ADMINISTRATION.
(a) This Plan shall be administered by the Board, which may,
from time to time, issue orders or adopt resolutions, not inconsistent with the
provisions of this Plan, to interpret the provisions and supervise the
administration of the Plan. All determinations shall be made by an affirmative
vote of a majority of the members of the Board at a meeting called for such
purpose, or reduced to writing and signed by a majority of the members of the
Board. Subject to the Company's Bylaws, all decisions made in selecting
Participants, establishing the number of shares and terms applicable to each
Option and in construing the provisions of this Plan shall be final, conclusive
and binding on all persons, including the Company, its stockholders and all of
its employees.
(b) Each Option shall be evidenced by an agreement (the
"Option Agreement"), which shall contain such terms and conditions as may be
approved by the Board and which shall be signed by both an officer of the
Company and the Participant.
4. EFFECTIVE DATE AND DURATION.
The Plan shall become effective as of March 13, 1997. Unless sooner
terminated by the Board, the Plan will terminate on March 1, 2007, and no
Options may be made or granted under the Plan after such date; however, shares
issuable upon the exercise of Options granted on or prior to such date may be
subsequently delivered or made to Participants in accordance with the terms and
conditions applicable to their respective Options.
5. ELIGIBILITY.
(a) Options may be made and granted under the Plan to all
Employees, except that no options may be made or granted to directors of the
Company who are also Employees. Such Employee Participants shall be selected
from time to time by the Board on the recommendation of the officers of the
Company.
(b) Options may be made and granted under the Plan to certain
recipients who are not employees of the Company and its Subsidiaries. Such
nonemployee Participants shall be chosen by the Board upon the recommendation of
the officers of the Company. No Nonemployee Participant shall be granted an
Incentive Stock Option.
6. AMENDMENT AND TERMINATION OF THE PLAN.
The Board may at any time terminate the Plan, or from time to time make
such amendments thereto, including additions or deletions, as the Board deems
advisable, except that no amendment may adversely affect any Option previously
made or granted to a Participant. No amendment shall be made, however, unless
approved by the stockholders of the Company, which would increase the maximum
number of shares as to which Options may be granted, extend the period during
which Options may be granted or made or materially modify the requirements as to
eligibility for participation in the Plan.
7. RIGHTS AND LIMITATIONS.
(a) No Employee shall have any claim or right to be granted an
Option under the Plan. Neither the Plan nor any action taken hereunder shall be
construed as giving any Employee any right to be retained in the employ of the
Company or any Subsidiary, to limit the right of the Company or any Subsidiary
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to terminate the employment of any Employee Participant at any time or to change
the terms of such employment.
(b) No Participant shall become, or shall have any of the
rights and privileges of, a stockholder of the Company with respect to any
shares of stock purchasable or issuable upon the exercise of any Outstanding
Option prior to the date of exercise of such Option.
8. OTHER COMPANY PLANS.
The adoption of the Plan shall not affect any other compensation or
incentive plan in effect for the Employees of the Company or any Subsidiary, and
the Plan shall not preclude the Board from establishing any other forms of
compensation for said Employees.
9. STOCK SUBJECT TO THE PLAN.
(a) Subject to adjustments made pursuant to subsection (b) of
this Section, the total number of shares which may be granted under the Plan
(which shares may be authorized but unissued shares or treasury shares) is One
Million (1,000,000) shares of Common Stock. To the extent that any Outstanding
Options shall expire or terminate, in whole or in part, without having been
exercised, the number of shares subject thereto shall again become available for
the granting of Options under the Plan, and said shares may thus be reoptioned.
(b) In the event there is a reclassification of, subdivision
of, combination of, stock dividend on, exchange of or other change in the stock
or other securities of the Company with respect to its outstanding Common Stock,
or any other similar event, the maximum number and class of shares subject to
Outstanding Options and the price per share payable upon exercise of such
Outstanding Options shall be appropriately adjusted by the Board, whose
determination shall be conclusive.
10. EFFECT OF REORGANIZATION.
If, prior to the expiration of any Outstanding Option, there shall be a
merger, consolidation or reorganization of the Company with another corporation
in which the Company is not the surviving corporation, the holder of any
Outstanding Option shall thereafter be entitled to receive, upon exercise of the
unexercised portion of the Outstanding Option, an equivalent number and kind of
shares, securities or other property as he would have received had he exercised
the unexercised portion of the Outstanding Option immediately prior to such
merger, consolidation or reorganization. Notwithstanding the foregoing and with
reference to the transactions described in the preceding sentence, any
Participant may agree to the assumption of his Outstanding Option by a
corporation other than the Company or the substitution of a stock option of a
corporation other than the Company for his Outstanding Option.
11. PROCEDURE FOR GRANTING OF OPTIONS.
(a) Subject to the terms, provisions and conditions of this
Plan, the Board shall select the Participants from the recommendations made by
the Company's officers, determine whether each Employee Participant shall
receive an Incentive Stock Option or a Non-Qualified Stock Option, determine the
number of shares of Common Stock subject to each Option, determine the time or
times when any Option will be granted, determine the time or times when each
Option may be exercised and establish the Fair Market Value of the shares. If
the Board fails to designate the character of any particular Option granted to
an Employee Participant, said Option shall be an Incentive Stock Option. The
appropriate officers of the Company shall
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prescribe the form, which shall be consistent with the Plan, of the
instruments evidencing any Options granted hereunder.
(b) As a condition to the granting of an Option, each
Participant shall be required to enter into an Option Agreement with the Company
which shall contain such provisions consistent with the Plan as may be
prescribed by the Board, including such restrictions as to the transferability
of the shares to be issued upon the exercise of an Option as the Board may, in
its discretion, deem appropriate. Such restrictions may be for the purpose of
assuring compliance with any applicable securities laws (as contemplated by
Section 16 hereof) or for other reasons deemed advisable by the Board.
(c) For all Incentive Stock Options granted under this Plan,
or granted under any other plan of the Company and its Subsidiaries, the
aggregate Fair Market Value, determined at the time the Options are granted, of
the stock exercisable for the first time by any Employee Participant during any
calendar year shall not exceed $100,000. Such restriction shall not apply to
Non-Qualified Stock Options granted under the Plan.
12. OPTION PRICE.
(a) The purchase price per share of Common Stock under each
Incentive Stock Option granted pursuant to the Plan shall not be less than the
Fair Market Value of such stock at the time such Option is granted; provided,
however, if an Incentive Stock Option is granted to an Employee Participant who,
at the date of the grant, owns stock constituting ten percent (10%) or more of
the voting power within the Company, said purchase price shall not be less than
one hundred ten percent (110%) of such Fair Market Value. The Board will
undertake any procedures that it deems prudent under the circumstances and in
good faith to determine such Fair Market Value.
(b) The purchase price per share of Common Stock under each
Non-Qualified Stock Option granted pursuant to the Plan shall be determined by
the Board.
13. DURATION OF OPTIONS.
Each Option granted under the Plan shall terminate not later than ten
(10) years after the date on which it was granted; provided, however, that each
Incentive Stock Option granted to an Employee Participant who, at the date of
the grant, owns stock constituting ten percent (10%) or more of the voting power
within the Company shall terminate not later than five (5) years from the date
of the grant. The Board may, in its discretion, provide a shorter time period
for any individual Option, which time period shall be disclosed in the Option
Agreement.
14. NONTRANSFERABILITY OF OPTIONS.
(a) No Incentive Stock Option granted under the Plan shall be
transferable by an Employee Participant for any reason whatsoever, whether
during his lifetime or at death, and each Incentive Stock Option may be
exercised, during a Participant's lifetime, only by him or his legal
representative on his behalf.
(b) Any restrictions or limitations on the transferability of
Non-Qualified Stock Options granted under the Plan shall be provided in the
Option Agreement.
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15. EXERCISE OF OPTIONS.
(a) Each Option shall be exercisable according to terms set by
the Board at the time of the grant and incorporated into the Option Agreement.
The Board may direct that an Option becomes exercisable in installments, which
need not be annual installments, over a period which may be less than the term
of the Option. At such time as an installment shall become exercisable, it may
be exercised at any time thereafter, in whole or in part, until the expiration
of termination of the Option. Only full shares which a Participant is entitled
to purchase will be issued, and no fractional shares will be issued.
(b) Options granted under the Plan may be exercised by the
Participants without regard to the date of the grant of any other Options
granted hereunder.
(c) A Participant may purchase shares pursuant to an
Outstanding Option only by giving the Company written notice of his election to
exercise such Option, specifying the number of shares to be purchased.
16. REGISTRATION.
Each Option granted under the Plan shall be subject to the condition
that if, at any time, in the opinion of counsel for the Company, the
registration, listing or qualification of the shares is required under any
securities exchange or under any law, or if the consent or approval of any
governmental regulatory body is necessary or if the updating, amendment or
revision of any registration statement, listing application or similar document
is required as a condition of, or in connection with, the purchase of shares
under such Option, no such Option may be exercised unless and until such
registration, listing, qualification, consent, approval, updating, amendment or
revision shall have been effected or obtained free of any conditions not
acceptable to the Board. The Board may, as a condition to the exercise by a
Participant of an Option, require that the Participant agree in writing that he
will not dispose of the shares to be acquired upon such exercise in a
transaction which, in the opinion of counsel for the Company, would violate any
securities laws or regulations promulgated thereunder. The Board shall have the
authority to require additional agreements or impose additional conditions which
it reasonably believes are necessary to assure compliance with all laws or
regulations and which are for the general benefit of the Company.
17. TERMINATION OF EMPLOYMENT.
If the employment of an Employee Participant by the Company or any
Subsidiary shall terminate for any reason including his death or disability, any
Option granted to such Participant, and all rights to purchase shares pursuant
thereto shall thereupon terminate.
18. TERMINATION OF SERVICE.
In the event that a Non-Qualified Stock Option has been granted to a
Nonemployee Participant, any occurrences which can result in a termination of
such Option, including the discontinuance of any business relationship between
the Company and the Nonemployee Participant, shall be provided in the Option
Agreement.
19. WITHHOLDING TAXES.
Upon the exercise of a Non-Qualified Stock Option, the Company or any
Subsidiary shall have the right to withhold an appropriate amount from an
Employee Participant's compensation to satisfy applicable withholding rules for
income and employment taxes.
20. USE OF PROCEEDS.
The proceeds received from the sale of Common Stock pursuant to the
Plan shall be used for any purpose of the Company.
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