exv4w5






Exhibit 4.5



ART TECHNOLOGY GROUP, INC.



1999 EMPLOYEE STOCK PURCHASE PLAN


     The 1999 Employee Stock Purchase Plan provides eligible employees of Art Technology Group,
Inc., or ATG, and certain of our subsidiaries with opportunities to purchase shares of ATG’s common
stock. A total of 500,000 shares of common stock may be issued under the plan.


     1. Administration. The plan will be administered by ATG’s Board of Directors or by a
committee appointed by the Board (all following references to the Board include any committee
appointed to administer the plan). The Board will make rules and regulations for the administration
of the plan, and its decisions regarding the plan are final. The Board will also designate which
subsidiaries may participate in the plan (all following references to ATG include any applicable
subsidiaries).


     2. Eligibility. Section 423 of the Internal Revenue Code of 1986, as amended, and
related regulations will govern participation in the plan. Any ATG employee, including any Board
member who is an employee, is eligible to participate in the plan, so long as you meet the
following requirements:



     (a) you are customarily employed by ATG for more than 20 hours a week and for more than five
months in a calendar year; and



     (b) you are an employee of ATG on the first day of the applicable offering period.


     No employee may be granted an option under the plan if such employee, immediately after the
option is granted, owns 5% or more of the total combined voting power or value of the stock of ATG
or any subsidiary. To determine whether you are ineligible under this requirement, we are required
to apply the attribution rules of Section 424(d) of the Internal Revenue Code to determine your
stock ownership, and all stock which you have a contractual right to purchase, including the stock
which you could purchase under the plan, will be treated as stock owned by you.


     3. Participation. If you are eligible to participate in an offering, you may
participate by completing and forwarding a payroll deduction authorization form to our payroll
office at least 14 days before the first date for that offering. By signing this form, you will
authorize ATG to make a regular payroll deduction from the compensation you receive during the
offering period. Compensation means the amount of money reportable on your Federal Income Tax
Withholding Statement, also called a W-2 form, excluding overtime, shift premium, incentive or
bonus awards (but not excluding incentive and bonus awards paid as part of ATG’s annual bonus
program), allowances and reimbursements for expenses such as relocation allowances or travel
expenses, income or gains on the exercise of ATG stock options or stock appreciation rights, and
similar items, whether or not shown on your W-2. If you are a salesperson, compensation includes
your sales commissions. Unless you file a new form or withdraw from the plan, your deductions and
purchases will continue at the same rate for future offerings as long as the plan remains in
effect.


     4. Deductions. We will maintain a payroll deduction account for each participating
employee. For any offering, you may authorize a payroll deduction from the compensation you receive
during the offering period of between 1% and 10%, in increments of 1%.


     5. Deduction Changes. You may decrease or discontinue your payroll deduction once
during any offering period by filing a new payroll deduction authorization form. However, you may
not increase your payroll deduction during an offering period. If you elect to discontinue your
payroll deductions during an offering period, you are not required to withdraw your funds; in that
case, funds deducted prior to discontinuing your participation will be applied to the purchase of
common stock on the last business day of the offering period.


     6. Interest. Interest will not be paid on the amounts held in payroll deduction
accounts.


     7. Withdrawal of Funds. You may, for any reason and at any time prior to the close
of business on the last business day in an offering period, permanently withdraw the balance
accumulated in your account and thereby terminate your participation in an offering. Partial
withdrawals are not permitted. You may not participate again during the remainder of the offering
period, but you may participate in any subsequent offering.


     8. Offerings. ATG will make one or more offerings to employees to purchase stock
under the plan. The Board will determine the start date of each offering. The first offering will
begin on the day on which trading of our common stock begins on the Nasdaq National Market. Each
offering period will last for six months. During each offering period, payroll deductions will be
made, and the deducted money will be held for you to buy common stock at the end of the offering
period.


 








 




     On the first day of each offering period, you will receive an option to buy up to, but no more
than, the number of shares of common stock calculated by dividing the closing market price of our
common stock on the first day of the offering period into $12,500. This figure is derived from the
restriction imposed by the Internal Revenue Code which provides that no employee may be granted an
option which permits his rights to purchase stock under this plan and any other employee stock
purchase plan (as defined in Section 423(b) of the Internal Revenue Code) of the Company and its
subsidiaries, to accrue at a rate which exceeds $25,000 of the fair market value of the common
stock (determined as of the first day of the offering) for each calendar year in which the option
is outstanding at any time. The actual number of shares which you will be able to purchase will
depend on the amount of money in your payroll deduction account on the last business day of the
offering period.


     9. Purchase of Shares. On the last business day of the offering period, your option
will be automatically exercised and your account will be used to buy shares of our common stock at
the following purchase price. The purchase price will be 85% of the closing market price of our
common stock on either (i) the first business day of the offering period or (ii) the last business
day of the offering period, whichever is lower. If no common stock was sold on the first business
day or the last business day of the offering period, the price of the common stock for that day
will be the reported market price for the next preceding day on which sales were made. Note,
however, that the closing price of the common stock on the first business day of the first offering
period will equal the initial public offering price.


     We will refund to you any balance remaining in your account at the end of an offering period,
except that we will carry forward into your account for the following offering any balance which is
less than the purchase price of one share of common stock. However, if you elect not to participate
in the following offering, we will refund to you the balance in your account.


     10. Evidence of Stock Ownership. Promptly after the end of each offering period, we
will deposit the number of shares of common stock which you have purchased into an account
established in your name at a stock brokerage or other financial services firm which we designate.
You may ask us to establish this brokerage account either in your name, or in your name and the
name of another person of legal age as joint tenants with rights of survivorship.


     You are free to sell or otherwise dispose of the shares in this brokerage account at any time.
However, for tax purposes, we need to know if you dispose of your shares within the following time
periods. Therefore, until you dispose of your shares, you agree to hold your shares in the
brokerage account until (a) two years after the beginning of the offering period in which you
purchased the shares or (b) one year after the applicable exercise date, whichever comes later.
Once these time periods have elapsed, you may move your shares to another stock brokerage or other
financial services firm, or you may request that we issue you a stock certificate.


     11. Rights on Retirement, Death or Termination of Employment. Your participation in
the plan will terminate if:



	 	•	 	your employment terminates;
	 
	 	•	 	you retire;
	 
	 	•	 	you die;
	 
	 	•	 	the subsidiary which you work for is no longer an ATG subsidiary; or
	 
	 	•	 	you are transferred to an ATG subsidiary which does not participate in the plan.




     If your participation in the plan terminates, we will not make a payroll deduction from any
pay due and owing to you at the time of termination and we will refund the balance in your account
to you. In the event of your death, we will refund the balance in your account:


     (a) to a beneficiary previously designated in a revocable notice signed by you (with any
spousal consent required under state law),


     (b) if you have not designated a beneficiary, to the executor or administrator of your
estate, or


     (c) if, to our knowledge, no executor or administrator has been appointed, to such other
person(s) as we may designate.


     12. Participants Are Not Stockholders. Neither participation in the plan nor making
deductions from your pay make you a stockholder. You are not a stockholder of any shares under the
plan until those shares have been bought by you and added to your brokerage account.


     13. Rights Are Not Transferable. You cannot transfer your rights under the plan
except through a will or the laws of descent and


 







 





distribution. During your lifetime, only you may exercise your rights under the plan.



     14. Application of Funds. We are allowed to combine the funds received from you or
held by ATG under the plan with other corporate funds, and we may use the funds for any corporate
purpose while we hold the funds.


     15. Adjustment in Case of Changes Affecting Common Stock. If there is a stock split,
stock dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of
shares, liquidation, spin-off or other similar event or change in ATG’s capitalization, or if any
distribution, other than a normal cash dividend, is made to holders of common stock, we will
proportionately adjust all share and purchase price numbers under the plan, and we may make any
other adjustment that the Board determines is fair. If any other change occurs which affects the
common stock, the Board will determine a fair adjustment.


     16. Merger. ATG could merge or consolidate with another corporation. Continuity of
control would be deemed to occur if the holders of ATG stock immediately prior to the merger or
consolidation continue to hold at least 80% by voting power of the stock of the surviving
corporation. If there is continuity of control and you are participating in the plan, at the next
exercise date you will be entitled to receive, for each share of ATG stock for which your option
was exercised, the securities or property which a holder of one share of common stock was entitled
to receive in the merger or consolidation.


     If there is no continuity of control, or if there is a sale of all or substantially all of
ATG’s assets, the Board will terminate the plan as of the effective date of such a transaction, as
long as notice of the cancellation is given to each participating employee. You will then have the
right to receive shares of our common stock based on the payroll deductions credited to your
account as of a date determined by the Board, which will not be less than ten (10) days preceding
the effective date of the transaction.


     17. Amending the Plan. The Board may amend the plan at any time in any way, except
that (a) if Section 423 of the Internal Revenue Code requires that the stockholders approve the
amendment, the amendment will not be effective until the stockholders approve it, and (b) the Board
may not make an amendment which would cause the plan to fail to comply with Section 423 of the
Internal Revenue Code.


     18. Insufficient Shares. If the total number of shares which all participating
employees elect to purchase under an offering, plus the number of shares purchased under previous
offerings, exceeds the maximum number of shares issuable under the plan, the Board will allot the
shares available on a pro rata basis.


     19. Termination of the Plan. The Board may terminate the plan at any time. If the
plan is terminated, we will promptly refund the amount in your account.


     20. Governmental Regulations. Our obligation to sell and deliver common stock under
the plan is subject to listing on a national stock exchange or quotation on the Nasdaq National
Market and the approval of all government authorities required in connection with the
authorization, issuance or sale of this stock.


     21. Governing Law. The plan is governed by Delaware law, except to the extent that
federal law preempts Delaware law.


     22. Issuance of Shares. We may issue the shares from authorized but unissued common
stock, from shares held in ATG’s treasury, or from any other proper source.


     23. Effective Date. The plan will take effect when the initial public offering
becomes effective.


Adopted by the Board of Directors

on May 10, 1999


Approved by the stockholders

on June 18, 1999


 








 





Amendment No. 1 to the

Art Technology Group, Inc.

1999 Employee Stock Purchase Plan (“Plan”)



     1. In the first unnumbered paragraph of the Plan, the sentence “A total of 500,000 shares of
common stock may be issued under the plan” shall be replaced by the following:


          “A total of 3,000,000 shares of common stock may be issued under the plan.”


     2. Section 3 of the Plan is replaced in its entirety by the following:



     “3. Participation. If you are eligible to participate in an offering, you may
participate by completing and submitting an online authorization form to our payroll office at
least 14 days before the first date for that offering. By submitting this authorization, you will
authorize ATG to make a regular payroll deduction from the compensation you receive during the
offering period. Compensation means the amount of money reportable on your Federal Income Tax
Withholding Statement, also called a W-2 form, excluding overtime, shift premium, incentive or
bonus awards (but not excluding incentive and bonus awards paid as part of ATG’s annual bonus
program), allowances and reimbursements for expenses such as relocation allowances or travel
expenses, income or gains on the exercise of ATG stock options or stock appreciation rights, and
similar items, whether or not shown on your W-2. If you are a salesperson, compensation includes
your sales commissions. Unless you submit a new online form or withdraw from the plan, your
deductions and purchases will continue at the same rate for future offerings as long as the plan
remains in effect.”


     3. The first sentence of Section 5 of the Plan is hereby modified to read as follows:



     “You may discontinue but not change the amount of your payroll deduction once during any
offering period by means of the then-current method of online authorization.”


     4. The first sentence of section 7 is hereby replaced with the following:



     “You may, for any reason and at any time prior to the close of business on the last day of
the last payroll in an offering period, permanently withdraw the balance accumulated in your
account and thereby terminate your participation in an offering.”


     5. The fourth sentence of the first paragraph of section 8 of the Plan shall be changed to
read as follows:



     “Each offering period will last for three months.”


     6. The first sentence of the second paragraph of section 8 shall be replaced with the
following:



     “On the first day of each offering period, you will receive an option to buy up to, but no
more than, the number of shares of common stock calculated by dividing the closing market price
of our common stock on the first day of the offering period into $6,250.”


Adopted by the Board of Directors

on March 20, 2002 and June 13, 2002


Approved by the stockholders

(only as to paragraph 1)

on May 19, 2002


 








 




Amendment No. 2 to the

Art Technology Group, Inc.

1999 Employee Stock Purchase Plan (“Plan”)



     1. In the first unnumbered paragraph of the Plan, the sentence “A total of 3,000,000 shares of
common stock may be issued under the plan” shall be replaced by the following:



     “A total of 5,000,000 shares of common stock may be issued under the plan.”


Adopted by the Board of Directors

on March 24, 2003


Approved by the stockholders

on May 21, 2003


 








 




Amendment No. 3 to the

Art Technology Group, Inc.

1999 Employee Stock Purchase Plan (the “Plan”)



     1. Section 4 of the Plan is replaced in its entirety by the following:



     “4. Deductions. We will maintain a payroll deduction account for each participating
employee. For any offering, you may authorize a payroll deduction from the compensation you
receive during the period of between 1% and 5%, in increments of 1%.”


Adopted by the Board of Directors

on April 4, 2005


 








 






Amendment No. 4 to the

Art Technology Group, Inc.

1999 Employee Stock Purchase Plan (the “Plan”)




     1. In the first unnumbered paragraph of the Plan, the sentence “A total of 5,000,000 shares of
common stock may be issued under the plan” shall be replaced by the following:




     “A total of 6,500,000 shares of common stock may be issued under the plan.”



     2. Section 4 of the Plan is replaced in its entirety by the following:




     “4. Deductions. We will maintain a payroll deduction account for each participating
employee. For any offering, you may authorize a payroll deduction from the compensation you
receive during the period of between 1% and 10%, in increments of 1%.”



     3. The second paragraph of Section 10 is replaced in its entirety by the following:




     “You may not sell or otherwise dispose of the shares acquired in an offering for a period of
ninety (90) days after the applicable purchase date. Thereafter, you are free to sell or
otherwise dispose of the shares in this brokerage account at any time. However, for tax purposes,
we need to know if you dispose of your shares within the following time periods. Therefore, until
you dispose of your shares, you agree to hold your shares in the brokerage account until (a) two
years after the beginning of the offering period in which you purchased the shares or (b) one
year after the applicable exercise date, whichever comes later. Once these time periods have
elapsed, you may move your shares to another stock brokerage or other financial services firm, or
you may request that we issue you a stock certificate.”



Adopted by the Board of Directors

on April 4, 2006




Approved by the stockholders

(only as to paragraph 1)

on May 26, 2006




 









 





Amendment No. 5 to the

Art Technology Group, Inc.

1999 Employee Stock Purchase Plan (the “Plan”)



     1. In the first unnumbered paragraph of the Plan, the sentence “A total of 6,500,000 shares of
common stock may be issued under the plan” shall be replaced by the following:



     “A total of 8,000,000 shares of common stock may be issued under the plan.”


Adopted by the Board of Directors

on April 21, 2009


Approved by the stockholders

on May 20, 2009