Exhibit 10.2
ART TECHNOLOGY GROUP, INC.
AMENDED AND RESTATED
1999 OUTSIDE DIRECTOR STOCK OPTION PLAN
1.
Purpose
The purpose of this Amended and
Restated 1999 Outside Director 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 outside
directors of the Company by providing such directors with equity
ownership opportunities and performance-based incentives that are
intended to better align their interests with those of the
Company’s stockholders.
2.
Eligibility
Each director of the Company who is
not an employee of the Company (an “Eligible Director”)
is eligible to receive options, restricted stock and other
stock-based awards (each an “Award”) under the Plan.
Any Eligible Director who receives an Award under the Plan is
deemed a “Participant.”
3.
Administration and Delegation
The Plan will be administered by the
Board of Directors of the Company (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 any
interpretation and implementation of Section 10(f)) 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 Option. 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.
4.
Stock Available for Awards
Subject to adjustment under
Section 8, Awards may be made under the Plan for up to
2,000,000 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.
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, 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 and each Award authorized
under this Plan after April 5, 2007, other than an Option,
shall reduce the number of shares available by 1.24 shares for
every one share granted.
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. None of the Options granted hereunder are
intended to be Incentive Stock Options as defined in
Section 422 of the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
(b)
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.
(c)
Duration of Options . Each Option granted to a Participant
shall expire on the earlier of 10 years from the date of grant
or one year following termination of such Participant’s
service on the Board.
(d)
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(e) for the number of shares for which the Option is
exercised.
(e)
Payment Upon Exercise . Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as
follows:
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(1) |
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in cash or by check, payable to the order of the Company; |
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(2) |
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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; |
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(3) |
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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
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; |
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(4) |
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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 |
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(5) |
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by any combination of the above permitted forms of
payment. |
(f)
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.
(g)
No Repricing of Options . Notwithstanding anything to the
contrary in the Plan, the Company shall not engage in any repricing
of Options 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 after it is
granted, (ii) any other actions that is treated as a repricing
under generally accepted accounting principles, or
(iii) canceling an Option at a time when its exercise price
exceeds the fair market value of the underlying stock in exchange
for other options, restricted stock, other stock-based awards 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 8).
6.
Restricted Stock.
(a)
Grants . The Board may grant Awards entitling Eligible
Directors 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”).
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(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.
7.
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 Eligible Directors
(“Other Stock Unit Awards”), including Awards entitling
Eligible Directors 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.
8.
Adjustments for Changes in Common Stock
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, (a) the
number and class of securities available under the Plan,
(b) the number and class of securities and exercise price per
share of each outstanding Option, (c) the repurchase price per
share subject to each outstanding Restricted Stock Award and
(d) the share- and per-share-related provisions of each
outstanding Other Stock Unit Award, shall be appropriately
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adjusted
by the Company (or substituted Awards may be made, if applicable)
to the extent determined by the Board.
9.
General Provisions Applicable to Awards
(a)
Transferability of Awards . Awards shall not be sold,
assigned, transferred, pledged or otherwise encumbered by the
person to whom they are granted, either voluntarily or by operation
of law, except by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order, and, during the
life of the Participant, shall be exercisable only by the
Participant. References to a Participant, to the extent relevant in
the context, shall include references to authorized
transferees.
(b)
Documentation . Each Award shall be evidenced in such form
(written, electronic or otherwise) as the Board shall determine.
Each Award may contain terms and conditions in addition to those
set forth in the Plan.
(c)
Conditions on Delivery of Stock . The Company will not be
obligated to deliver any shares of Common Stock pursuant to the
Plan or to remove restrictions from shares previously delivered
under the Plan until (1) all conditions of the Award have been
met or removed to the satisfaction of the Company, (2) in the
opinion of the Company’s counsel, all other legal matters in
connection with the issuance and delivery of such shares have been
satisfied, including any applicable securities laws and any
applicable stock
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