Exhibit 10.1
ART TECHNOLOGY GROUP, INC.
AMENDED AND RESTATED 1996 STOCK OPTION PLAN
1.
Purpose . The purpose of this Amended and Restated 1996
Stock Option Plan (the “Plan”) of Art Technology Group,
Inc., a Delaware corporation (the “Company”), is to
advance the interests of the Company’s stockholders by
enhancing the Company’s ability to attract, retain and
motivate persons who are expected to make important contributions
to the Company and by providing such persons with equity ownership
opportunities and performance-based incentives that are intended to
better align their interests with those of the Company’s
stockholders. Except where the context otherwise requires, the term
“Company” shall include any of the Company’s
present or future parent or subsidiary corporations as defined in
Section 424(e) or (f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the
“Code”) and any other business venture (including any
joint venture or limited liability company) in which the Company
has a controlling interest, as determined by the Board of Directors
of the Company (the “Board”).
2.
Eligibility . All of the Company’s employees,
officers, directors, consultants and advisors are eligible to
receive options, stock appreciation rights, restricted stock and
other stock-based awards (each, an “Award”) under the
Plan. Each person who receives an Award under the Plan is deemed a
“Participant.”
3.
Administration and Delegation .
(a)
Administration by Board . The Plan will be administered by
the Board. The Board shall have authority to grant Awards and to
adopt, amend and repeal such administrative rules, guidelines and
practices relating to the Plan as it shall deem advisable. The
Board may correct any defect, supply any omission or reconcile any
inconsistency in the Plan or any Award in the manner and to the
extent it shall deem expedient to carry the Plan into effect
(including the interpretation and implementation of
Section 11(g)) and it shall be the sole and final judge of
such expediency. All decisions by the Board shall be made in the
Board’s sole discretion and shall be final and binding on all
persons having or claiming any interest in the Plan or in any
Award. No director or person acting pursuant to the authority
delegated by the Board shall be liable for any action or
determination relating to or under the Plan made in good
faith.
(b)
Appointment of Committees . To the extent permitted by
applicable law, the Board may delegate any or all of its powers
under the Plan to one or more committees or subcommittees of the
Board (a “Committee”). All references in the Plan to
the “Board” shall mean the Board or a Committee of the
Board or the officers referred to in Section 3(c) to the extent
that the Board’s powers or authority under the Plan have been
delegated to such Committee or officers.
(c)
Delegation to Officers . To the extent permitted by
applicable law, the Board may delegate to one or more officers of
the Company the power to grant Awards to employees or officers of
the Company or any of its present or future subsidiary corporations
and
to
exercise such other powers under the Plan as the Board may
determine, provided that the Board shall fix the terms of the
Awards to be granted by such officers (including the exercise price
of such Awards, which may include a formula by which the exercise
price will be determined) and the maximum number of shares subject
to Awards that the officers may grant; provided further that no
officer shall be authorized to grant Awards to any “executive
officer” of the Company (as defined by Rule 3b-7 under
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) or to any “officer” of the
Company (as defined by Rule 16a-1 under the Exchange
Act).
4.
Stock Available for Awards .
(a)
Number of Shares . Subject to adjustment under
Section 9, Awards may be made under the Plan for up to
25,600,000 shares of common stock, $0.01 par value per share, of
the Company (the “Common Stock”). If any Award expires
or is terminated, surrendered or canceled without having been fully
exercised or is forfeited in whole or in part (including as the
result of shares of Common Stock subject to such Award being
repurchased by the Company at the original issuance price pursuant
to a contractual repurchase right) or results in any Common Stock
not being issued, the unused Common Stock covered by such Award
shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options (as
hereinafter defined), to any limitations under the Code. Shares
issued under the Plan may consist in whole or in part of authorized
but unissued shares or treasury shares. Solely for the purpose of
applying this limitation (and not for purposes of Section 4(b)
below), each Option (each as hereinafter defined) granted under
this Plan shall reduce the number of shares available for grant by
one share for every one share granted, each SAR (each as
hereinafter defined) granted under this Plan shall reduce the
number of shares available for grant by one share for every one
share underlying the SAR, and each Award authorized under this Plan
after April 5, 2007, other than an Option or SAR, shall reduce
the number of shares available by 1.24 shares for every one share
granted.
(b)
Section 162(m) Per-Participant Limit . Subject to
adjustment under Section 9, the maximum number of shares of
Common Stock with respect to which Awards may be granted to any
Participant under the Plan shall be 1,000,000 per calendar year.
For purposes of the foregoing limit, the combination of an Option
in tandem with an SAR shall be treated as a single Award. The
per-Participant limit described in this Section 4(b) shall be
construed and applied consistently with Section 162(m) of the Code
or any successor provision thereto, and the regulations thereunder
(“Section 162(m)”).
5.
Stock Options .
(a)
General . The Board may grant options to purchase Common
Stock (each, an “Option”) and determine the number of
shares of Common Stock to be covered by each Option, the exercise
price of each Option and the conditions and limitations applicable
to the exercise of each Option, including conditions relating to
applicable federal or state securities laws, as it considers
necessary or advisable. An Option that is not intended to be an
Incentive Stock Option (as hereinafter defined) shall be designated
a “Nonstatutory Stock Option.”
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(b)
Incentive Stock Options . An Option that the Board intends
to be an “incentive stock option” as defined in
Section 422 of the Code (an “Incentive Stock
Option”) shall only be granted to employees of Art Technology
Group, Inc., any of Art Technology Group, Inc.’s present or
future parent or subsidiary corporations as defined in Section
424(e) or (f) of the Code, and any other entities the
employees of which are eligible to receive Incentive Stock Options
under the Code, and shall be subject to and shall be construed
consistently with the requirements of Section 422 of the Code. The
Company shall have no liability to a Participant, or any other
party, if an Option (or any part thereof) that is intended to be an
Incentive Stock Option is not an Incentive Stock Option or for any
action taken by the Board pursuant to Section 10(f), including
the conversion of an Incentive Stock Option to a Nonstatutory Stock
Option.
(c)
Exercise Price . The Board shall establish the exercise
price of each Option and specify such exercise price in the
applicable option agreement, provided, however, that the exercise
price of any Option shall not be less than the fair market value
per share of the Common Stock as of the date of option grant.
(d)
Duration of Options . Each Option shall be exercisable at
such times and subject to such terms and conditions as the Board
may specify in the applicable option agreement, provided, however,
that no Option shall be exercisable more than ten (10) years
after the date the Option is granted.
(e)
Exercise of Options . Options may be exercised by delivery
to the Company of a written notice of exercise signed by the proper
person or by any other form of notice (including electronic notice)
approved by the Board together with payment in full as specified in
Section 5(f) for the number of shares for which the Option is
exercised.
(f)
Payment Upon Exercise . Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as
follows:
(1) in
cash or by check, payable to the order of the Company;
(2) except
as the Board may otherwise provide in an option agreement, by
(A) delivery of an irrevocable and unconditional undertaking
by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price and any required tax
withholding or (B) delivery by the Participant to the Company
of a copy of irrevocable and unconditional instructions to a
creditworthy broker to deliver promptly to the Company cash or a
check sufficient to pay the exercise price and any required tax
withholding or (C) with the consent of the Board, by reducing
the number of shares of Common Stock otherwise issuable to the
optionee upon exercise of the Option by a number of shares of
Common Stock having a fair market value equal to such aggregate
exercise price;
(3) when
the Common Stock is registered under the Securities Exchange Act of
1934 (the “Exchange Act”), by delivery of shares of
Common Stock owned by the Participant valued at their fair market
value as determined by (or in a manner approved by) the Board
(“Fair Market Value”), provided (A) such method of
payment is then permitted under applicable law, (B) such
Common Stock, if acquired directly from the Company, was owned
by
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the
Participant at least six months prior to such delivery and
(C) such Common Stock is not subject to any repurchase,
forfeiture, unfulfilled vesting or other similar
requirements;
(4) to
the extent permitted by applicable law and by the Board, by
(A) delivery of a promissory note of the Participant to the
Company on terms determined by the Board, with the understanding
that no loans shall be made to directors or executive officers, or
(B) payment of such other lawful consideration as the Board
may determine; or
(5) by
any combination of the above permitted forms of payment.
(g)
Substitute Options . In connection with a merger or
consolidation of an entity with the Company or the acquisition by
the Company of property or stock of an entity, the Board may grant
Options in substitution for any options or other stock or
stock-based awards granted by such entity or an affiliate thereof.
Substitute Options may be granted on such terms as the Board deems
appropriate in the circumstances, notwithstanding any limitations
on Options contained in the other sections of this Section 5
or in Section 2.
(h)
No Repricing of Options . Notwithstanding anything to the
contrary in the Plan, the Company shall not engage in any repricing
of Options or SARs granted under this Plan without further
stockholder approval. For this purpose, the term
“repricing” shall mean any of the following or other
action that has the same effect: (i) lowering the exercise
price of an Option or an SAR after it is granted, (ii) any
other actions that is treated as a repricing under generally
accepted accounting principles, or (iii) canceling an Option
or an SAR at a time when its exercise price exceeds the fair market
value of the underlying stock in exchange for another Option, SAR,
restricted stock, or other equity of the Company, unless the
cancellation and exchange occurs in connection with a merger,
acquisition, spin-off, or similar corporate transaction (including
any adjustment described in Section 9).
6.
Stock Appreciation Rights .
(a)
Nature . A Stock Appreciation Right (“SAR”) is
an Award entitling the holder on exercise to receive an amount in
cash or Common Stock or a combination thereof (such form to be
determined by the Board) determined in whole or in part by
reference to appreciation, from and after the date of grant, in the
fair market value of a share of Common Stock, provided, however,
that the exercise price of any SAR shall not be less than the fair
market value per share of the Common Stock as of the date of the
SAR Award. The date as of which such appreciation or other measure
is determined shall be the exercise date unless another date is
specified by the Board in the SAR Award.
(b)
Grants . SARs may be granted in tandem with, or
independently of, Options granted under the Plan.
(1)
Tandem Awards . When SARs are expressly granted in tandem
with Options: (A) the SAR will be exercisable only at such
time or times, and to the extent, that the related Option is
exercisable and will be exercisable in accordance with the
procedure required for exercise of the related Option; (B) the
SAR will terminate and no longer be exercisable upon the
termination or exercise of the related Option, except that a SAR
granted with respect to less than the full number of shares covered
by an Option will not be reduced until
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the
number of shares as to which the related Option has been exercised
or has terminated exceeds the number of shares not covered by the
SAR; (C) the Option will terminate and no longer be
exercisable upon the exercise of the related SAR; and (D) the
SAR will be transferable only with the related Option.
(2)
Independent SARs . A SAR not expressly granted in tandem
with an Option will become exercisable at such time or times, and
on such conditions, as the Board may specify in the SAR
Award.
(c)
Exercise . A SAR may be exercised only by delivery to the
Company of a written notice of exercise signed by the proper person
or other form of notice (including electronic notice) approved by
the Board, together with any other documents required by the
Board.
(d)
Duration of SARs . No SAR shall be exercisable more than ten
(10) years after the date the SAR is granted.
7.
Restricted Stock .
(a)
Grants . The Board may grant Awards entitling recipients to
acquire shares of Common Stock, subject to the right of the Company
to repurchase all or part of such shares at their issue price or
other stated or formula price (or to require forfeiture of such
shares if issued at no cost) from the recipient in the event that
conditions specified by the Board in the applicable Award are not
satisfied prior to the end of the applicable restriction period or
periods established by the Board for such Award (each, a
“Restricted Stock Award”).
(b)
Terms and Conditions . The Board shall determine the terms
and conditions of a Restricted Stock Award, including the
conditions for repurchase (or forfeiture) and the issue price, if
any.
(c)
Stock Certificates . Any stock certificates issued in
respect of a Restricted Stock Award shall be registered in the name
of the Participant and, unless otherwise determined by the Board,
deposited by the Participant, together with a stock power endorsed
in blank, with the Company (or its designee). At the expiration of
the applicable restriction periods, the Company (or such designee)
shall deliver the certificates no longer subject to such
restrictions to the Participant or the Designated Beneficiary of
such Participant. For these purposes, a “Designated
Beneficiary” of a Participant shall be (1) a beneficiary
designated by such Participant, in a manner determined by the
Board, to receive amounts due or exercise rights of such
Participant in the event of such Participant’s death or
(2) in the absence of such a designation, the
Participant’s estate.
(d)
Deferred Delivery of Shares . The Board may, at the time any
Restricted Stock Award is granted, provide that, at the time Common
Stock would otherwise be delivered pursuant to the Award, the
Participant shall instead receive an instrument evidencing the
right to future delivery of Common Stock at such time or times, and
on such conditions, as the Board shall specify. The Board may at
any time accelerate the time at which delivery of all or any part
of the Common Stock shall take place.
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8.
Other Stock-Based Awards . Other Awards of shares of Common
Stock, and other Awards that are valued in whole or in part by
reference to, or are otherwise based on, shares of Common Stock or
other property, may be granted under the Plan to Participants
(“Other Stock Unit Awards”), including Awards entitling
recipients to receive shares of Common Stock to be delivered in the
future. Such Other Stock Unit Awards shall also be available as a
form of payment in the settlement of other Awards granted under the
Plan or as payment in lieu of compensation to which a Participant
is otherwise entitled. Other Stock Unit Awards may be paid in
shares of Common Stock or cash, as the Board shall determine.
Subject to the provisions of the Plan, the Board shall determine
the conditions of each Other Stock Unit Awards, including any
purchase price applicable thereto. At the time any Award is
granted, the Board may provide that, at the time Common Stock would
otherwise be delivered pursuant to the Award, the Participant will
instead receive an instrument evidencing the Participant’s
right to future delivery of the Common Stock.
9.
Adjustments for Changes in Common Stock and Certain Other
Events .
(a)
Changes in Capitalization . In the event of any stock split,
reverse stock split, stock dividend, recapitalization, combination
of shares, reclassification of shares, spin-off or other similar
change in capitalization or event, or any distribution to holders
of Common Stock other than an ordinary cash dividend, (1) the
number and class of securities available under the Plan,
(2) the sub-limit set forth in Section 4(b), (3) the
number and class of securities and exercise price per share of each
outstanding Option, (4) the repurchase price per share subject
to each outstanding Restricted Stock Award and (5) the share-
and per-share-related provisions of each outstanding SAR and Other
Stock Unit Award, shall be appropriately adjusted by the Company
(or substituted Awards may be made, if applicable) to the extent
determined by the Board.
(b)
Reorganization Events .
(1)
Definition . A “Reorganization Event” shall
mean: (A) any merger or consolidation of the Company with or
into another entity as a result of which all of the Common Stock of
the Company is converted into or exchanged for the right to receive
cash, securities or other property, (B) any exchange of all of
the Common Stock of the Company for cash, securities or other
property pursuant to a share exchange transaction or (C) any
liquidation or dissolution of the Company.
(2)
Consequences of a Reorganization Event on Awards Other than
Restricted Stock Awards . In connection with a Reorganization
Event, the Board shall have the authority to take, in its
discretion, any of the following actions as to all or any
outstanding Awards on such terms as the Board determines:
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