As adopted by the
Board of Directors
on April 19, 2007
ART TECHNOLOGY GROUP,
INC.
1999 OUTSIDE DIRECTOR STOCK
OPTION PLAN
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.
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.
(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
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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.
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(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).
(a)
Grants . The Board may grant Awards entitling Eligible
Directors to acquire shares of Common Stock, subject to the right
of t
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