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 and thereby better aligning the
interests of such persons 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 be granted options (an "Option") under the
Plan. Any person who has been granted an Option under the Plan shall be deemed a
"Participant."
3. Administration, Delegation
The Plan will be administered by the Board of Directors of the Company
(the "Board"). The Board shall have authority 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 Option in the manner and to the
extent it shall deem expedient to carry the Plan into effect 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 Options
a. Number of Shares. Subject to adjustment under Section 4(b), Options
may be made under the Plan for up to 800,000 shares of common stock, $.01 par
value per share, of the Company (the "Common Stock"). If any Option expires or
is terminated, surrendered or canceled without having been fully exercised or is
forfeited in whole or in part or results in any Common Stock not being issued,
the unused Common Stock covered by such Option shall again be available for the
grant of Options under the Plan. Shares issued under the Plan may consist in
whole or in part of authorized but unissued shares or treasury shares.
b. Adjustment to Common Stock. In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation, combination,
exchange of shares, liquidation, spin-off or other similar change in
capitalization or event, or any distribution to holders of Common Stock other
than a normal cash dividend, (i) the number and class of securities available
under this Plan, (ii) the number and class of securities and exercise price per
share subject to each outstanding Option, and (iii) the number and class of
securities available for automatic grants shall be appropriately adjusted by the
Company (or substituted Options may be made, if applicable) to the extent the
Board shall determine, in good faith, that such an adjustment (or substitution)
is necessary and appropriate. If this Section 4(b) applies and Section 6(c) also
applies to any event, Section 6(c) shall be applicable to such event, and this
Section 4(b) shall not be applicable.
5. Stock Options
a. Grants. The Board may grant Options and determine the number of
shares of Common Stock to be covered by 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. Option Exercise Price. The option exercise price per share for each
Option granted under the Plan shall equal (i) the last reported sales price per
share of the Company's Common Stock as listed on a nationally recognized
securities exchange or the Nasdaq National Market, as the case may be, on the
date of grant (or, if no such price is reported on such date, such price as
reported on the nearest preceding day); or (ii) the fair market value of the
stock on the date of grant, as determined by the Board of Directors, if the
Common Stock is not publicly traded. Notwithstanding the preceding sentence, the
option exercise price per share for each Option granted as of the Effective Date
of the initial public offering shall be the price per share for which the Common
Stock was offered to the public.
c. Exercise Period. No Option may be exercised more than one year
after the Participant ceases to serve as a director of the Company. No Option
shall be exercisable after the expiration of ten (10) years from the date of
grant or prior to approval of the Plan by the stockholders of the Company.
d. Payment Upon Exercise. Common Stock purchased upon the
exercise of an Option granted under the Plan shall be paid for as follows:
i. in cash or by check, payable to the order of the
Company;
ii. except as the Board may otherwise provide in an Option
Agreement, by delivery of an irrevocable and unconditional undertaking by a
creditworthy broker to deliver promptly to the Company sufficient funds to pay
the exercise price, or by 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;
iii. to the extent permitted by the Board and explicitly
provided in an Option Agreement (i) by delivery of shares of Common Stock owned
by the Participant valued at their fair market value as determined by the Board
in good faith ("Fair Market Value"), which Common Stock was owned by the
Participant at least six months prior to such delivery, (ii) by delivery of a
promissory note of the Participant to the Company on terms determined by the
Board, or (iii) by payment of such other lawful consideration as the Board may
determine; or
iv. by any combination of the above permitted forms of
payment.
6. General Provisions Applicable to Options
a. Transferability of Options. Except as the Board may otherwise
determine or provide in an Option, Options 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, 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 Option under the Plan shall be evidenced
by a written instrument in such form as the Board shall determine. Each Option
may contain terms and conditions in addition to those set forth in the Plan.
c. Acquisition Events. The Company shall give the Participant ten (10)
days notice of an Acquisition Event (as defined below), and the Option shall
expire upon the Acquisition Event. An "Acquisition Event" shall mean: (a) any
merger or consolidation which results in the voting securities of the Company
outstanding immediately prior thereto representing immediately thereafter
(either by remaining outstanding or by being converted into voting securities of
the surviving or acquiring entity) less than 50% of the combined voting power of
the voting securities of the Company or such surviving or acquiring entity
outstanding immediately after such merger or consolidation; (b) any sale of all
or substantially all of the assets of the Company; or (c) the complete
liquidation of the Company.
d. 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 (i) all
conditions of the Option have been met or removed to the satisfaction of the
Company, (ii) 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 exchange or
stock market rules and regulations, and (iii) the Participant has executed and
delivered to the Company such representations or agreements as the Company may
consider appropriate to satisfy the requirements of any applicable laws, rules
or regulations.
7. Miscellaneous
a. No Right To Board Membership or Other Status. Neither the Plan
nor the granting of an Option shall be construed as giving a Participant the
right to continue as a director of the Company.
b. No Rights As Stockholder. Subject to the provisions of the
applicable Options, no Participant or beneficiary designated by the Participant
shall have any rights as a stockholder with respect to any shares of Common
Stock to be distributed with respect to an Option until becoming the record
holder of such shares.
c. Effective Date and Term of Plan. The Plan shall become effective on
the date on which it is adopted by the Board. No Options shall be granted under
the Plan after the completion of ten years from the date on which the Plan was
adopted by the Board, but Options previously granted may extend beyond that
date.
d. Amendment of Plan. The Board may amend, suspend or terminate
the Plan or any portion thereof at any time.
e. Governing Law. The provisions of the Plan and all Options made
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware, without regard to any applicable conflicts of law.
ART TECHNOLOGY GROUP, INC.
Nonstatutory Stock Option Agreement
Granted Under the Amended and Restated 1999 Outside Director Stock Option Plan
1. Grant of Option.
This agreement evidences the grant by Art Technology Group, Inc., a
Delaware corporation (the "Company"), on [ , ____] (the "Grant Date")
to [ ], a director of the Company (the "Participant"), of an option to
purchase, in whole or in part, on the terms provided herein and in the
Company's Amended and Restated 1999 Outside Director Stock Option Plan
(the "Plan"), a total of [ ] shares of common stock, $.01 par value per
share, of the Company ("Common Stock") (the "Shares") at $[ ] per
Share. Unless earlier terminated, this option shall expire on the tenth
anniversary of the Grant Date (the "Final Exercise Date").
It is intended that the option evidenced by this agreement shall not be
an incentive stock option as defined in Section 422 of the Internal
Revenue Code of 1986, as amended, and any regulations promulgated
thereunder (the "Code"). Except as otherwise indicated by the context,
the term "Participant," as used in this option, shall be deemed to
include any person who acquires the right to exercise this option
validly under its terms.
2. Vesting Schedule.
This option will become exercisable ("vest") as to 100% of the original
number of Shares on the Grant Date. This option shall expire upon, and
will not be exercisable after, the Final Exercise Date.
The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible
it shall continue to be exercisable, in whole or in part, with respect
to all shares for which it is vested until the earlier of the Final
Exercise Date or the termination of this option under Section 3 hereof
or the Plan.
3. Exercise of Option.
a. Form of Exercise. Each election to exercise this option shall be in
writing, signed by the Participant, and received by the Company at its
principal office, accompanied by this agreement, and payment in full in
the manner provided in the Plan. The Participant may purchase less than
the number of shares covered hereby, provided that no partial exercise
of this option may be for any fractional share.
b. Exercise Period. Each Option shall immediately vest and be exercisable.
In addition, no Option may be exercised more than one year after the
Participant ceases to serve as a director of the Company. No Option
shall be exercisable after the expiration of ten (10) years from the
date of grant or prior to approval of the Plan by the stockholders of
the Company.
4. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Participant, either voluntarily or by
operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, this option
shall be exercisable only by the Participant.
5. Provisions of the Plan.
This option is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option
shall take effect as a sealed instrument.
ART TECHNOLOGY GROUP, INC.
Dated: By:
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Name:
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Title:
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PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof. The undersigned hereby acknowledges receipt of a copy of the
Art Technology Group, Inc. 1999 Outside Director Stock Option Plan.
PARTICIPANT:
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Name:
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Address:
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AMENDMENT NO. 1
to the AMENDED AND RESTATED
1999 OUTSIDE DIRECTOR STOCK OPTION PLAN of
ART TECHNOLOGY GROUP, INC.
Pursuant to Section 7(d) of the Amended and Restated Outside Director
Stock Option Plan (the "Plan") of Art Technology Group, Inc. (the "Company"),
the Plan is hereby amended as follows:
1. Resolved: Section 5(d)(iii) be and hereby is amended by deleting the
entirety of subsection (ii) thereunder and renumbering subsection (iii)
as subsection (ii).
Approved by the Board of Directors
February 3, 2005