sv8
As
filed with the Securities and Exchange Commission on February
27, 2009
Registration No. 333-•
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Art Technology Group, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware
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04-3141918 |
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(I.R.S. employer identification no.) |
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| One Main Street, Cambridge, Massachusetts
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02142 |
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(Zip code) |
Amended and Restated 1996 Stock Option Plan
(Full title of the plan)
Robert D. Burke
President and Chief Executive Officer
Art Technology Group, Inc.
One Main Street
Cambridge, Massachusetts 02142
(Name and address of agent for service)
(617) 386-1000
(Telephone number, including area code, of agent for service)
Copies to:
John D. Patterson, Jr., Esq.
Robert W. Sweet, Jr., Esq.
Foley Hoag LLP
Seaport World Trade Center West
155 Seaport Boulevard
Boston, Massachusetts 02210
Telephone: (617) 832-1000
Telecopy: (617) 832-7000
Indicated by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large
accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act. (Check one):
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company)
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CALCULATION OF REGISTRATION FEE
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Title of |
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Amount |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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securities to be |
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to be |
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offering price |
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aggregate |
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registration |
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registered |
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registered |
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per share |
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offering price |
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fee |
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Common stock, $0.01 par
value (1) |
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6,400,000 (2)(3) |
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$2.395 (4) |
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$15,328,000 |
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$602.39 |
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Each share includes one right to purchase shares of the Registrant’s series A junior
participating preferred stock pursuant to the terms of a Rights Agreement, dated September 26,
2001, between the Registrant and EquiServe Trust Company, N.A. |
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Represents shares of the Registrant’s common stock issuable pursuant to awards granted under
the Amended and Restated 2006 Stock Option Plan of Art Technology Group, Inc. (the “2006 Stock
Plan”). |
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Pursuant to Rule 416(a) under the Securities Act, this Registration Statement shall also
cover any additional shares of the Registrant’s common stock that become issuable under the
1996 Plan by reason of any stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration that increases the number of the
Registrant’s outstanding shares of common stock. |
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The proposed maximum offering price per share has been estimated in accordance with Rule
457(c) and Rule 457(h) under the Securities Act solely for the purpose of calculating the
registration fee of shares reserved for future issuance based on the average of the high and
low price of the Registrant’s common stock as quoted on the
Nasdaq Global Market on February 25, 2009. |
This Registration Statement is filed pursuant to General Instruction E to Form S-8 by Art
Technology Group, Inc., a Delaware corporation (the “Registrant”) to register 6,400,000 shares of
the Registrant’s common stock, $0.01 par value per share, issuable pursuant to the Registrant’s
Amended and Restated 1996 Stock Option Plan (“2006 Stock Plan”), which shares are in addition to
those previously registered on the Forms S-8 (File Nos. 333-83325, 333-38926, and 333-73664) filed
with the Securities and Exchange Commission on July 21, 1999, June 9, 2000 and November 19, 2001,
respectively (the “Original Registration Statements”).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates herein by reference the contents of the previously filed Original
Registration Statements and the following documents filed with the Securities and Exchange
Commission:
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(a) |
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the Registrant’s Annual Report on Form 10-K for the year ended December 31,
2008, as filed with the Commission pursuant to Section 13 of the Exchange Act; |
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(b) |
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the Registrant’s Current Reports on Form 8-K filed on February 5, 2009; and |
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(c) |
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the description of the Registrant’s common stock and related preferred stock
purchase rights contained in the Registrant’s registration statement on Form 8-A filed
on July 12, 1999, together with amendments and reports filed for the purpose of
updating that description, including Amendment No. 1 to Form 8-A filed on October 2,
2001. |
All documents subsequently filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement and to be a part hereof
from the dates of filing of those documents.
Under no circumstances will any information filed under items 2.02 or 7.01 of Form 8-K be
deemed incorporated herein by reference unless such Form 8-K expressly provides to the contrary.
You may request a copy of the filings incorporated by reference herein, at no cost, by writing
or telephoning the Registrant at:
Art Technology Group, Inc.
One Main Street
Cambridge, Massachusetts 02142
(617) 386-1000
You should rely only on the information provided or incorporated by reference in this
registration statement or any related prospectus. The Registrant has not authorized anyone to
provide you with different information. You should not assume that the information in this
registration statement or any related prospectus is accurate as of any date other than the date on
the front of the document.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities registered hereby is being passed upon for the Registrant by
Foley Hoag LLP, Boston, Massachusetts.
Item 6. Indemnification of Directors and Officers.
Incorporated by reference to the Original Registration Statements.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are included as part of this registration statement.
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Filed with |
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Incorporated by reference |
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this Form |
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Filing Date with |
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Exhibit |
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Description |
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S-8 |
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Form |
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SEC |
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Number |
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4.1 |
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Amended and Restated Certificate
of Incorporation of Art
Technology Group, Inc.
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S-8 |
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June 12, 2003 |
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4.1 |
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4.2 |
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Amended and Restated By-Laws of
Art Technology Group, Inc. |
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S-3 |
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July 6, 2001 |
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4.2 |
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4.3 |
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Specimen common stock certificate |
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S-1/A |
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July 13, 1999 |
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4.4 |
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Rights Agreement dated September
26, 2001 between Art Technology
Group, Inc. and Computershare
Investor Services f/k/a
EquiServe Trust Company, N.A.,
as rights agent |
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8-K |
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October 2, 2001 |
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4.1 |
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4.5 |
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Art Technology Group, Inc.
Amended and Restated 1996 Stock
Option Plan |
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10-K |
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February 27, 2009 |
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10.1 |
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5.1 |
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Legal opinion of Foley Hoag LLP |
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23.1 |
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Consent of Ernst & Young LLP |
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23.2 |
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Consent of Foley Hoag LLP
(contained in Exhibit 5.1) |
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24.1 |
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Power of Attorney (included on
the signature page of this
registration statement) |
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Item 9. Undertakings.
Incorporated by reference to the Original Registration Statements.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Cambridge, Commonwealth of
Massachusetts, on this 27th day
of February, 2009.
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Art Technology Group, Inc.
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By: |
/s/ Robert D. Burke
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Robert D. Burke |
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President and Chief Executive Officer |
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POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS that each individual whose signature appears below hereby
constitutes and appoints Robert D. Burke and Julie M.B. Bradley, and each of them, his or her true
and lawful attorneys-in-fact and agents with full power of substitution, for him or her and in his
or her name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same, with all exhibits
thereto, and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing which they, or any of them, may deem necessary or
advisable to be done in connection with this registration statement, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or any substitute or substitutes for him or her, or
any or all of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed by the following persons in the indicated capacities as of
this 27th day of February, 2009.
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| Signature |
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Title |
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/s/ Robert D. Burke |
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President, Chief Executive Officer and Director |
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(Principal
Executive Officer) |
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/s/ Julie M.B. Bradley |
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Senior Vice President and Chief Financial Officer |
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(Principal
Financial and Accounting Officer) |
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/s/ Daniel C. Regis |
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Chairman of the Board |
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/s/ Michael A. Brochu |
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Director |
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/s/ David B. Elsbree |
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Director |
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/s/ John R. Held |
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Director |
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/s/ Ilene H. Lang |
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Director |
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/s/ Mary E. Makela |
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Director |
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/s/ Phyllis S. Swersky |
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Director |
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EXHIBIT INDEX
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Filed with |
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Incorporated by reference |
| Exhibit |
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this Form |
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Filing date with |
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Exhibit |
| Number |
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Description |
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S-8 |
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Form |
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SEC |
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number |
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4.1 |
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Amended and Restated Certificate
of Incorporation of Art
Technology Group, Inc. |
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S-8 |
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June 12, 2003 |
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4.1 |
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4.2 |
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Amended and Restated By-Laws of
Art Technology Group, Inc. |
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S-3 |
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July 6, 2001 |
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4.2 |
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4.3 |
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Specimen common stock certificate |
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S-1/A |
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July 13, 1999 |
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4.4 |
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Rights Agreement dated September
26, 2001 between Art Technology
Group, Inc. and Computershare
investor Services, f/k/a
EquiServe Trust Company, N.A.,
as rights agent |
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8-K |
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October 2, 2001 |
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4.1 |
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4.5 |
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Art Technology Group, Inc.
Amended and Restated 1996 Stock
Option Plan |
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10-K |
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February 27, 2009 |
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10.1 |
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5.1 |
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Legal opinion of Foley Hoag LLP |
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X |
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23.1 |
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Consent of Ernst & Young LLP |
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23.2 |
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Consent of Foley Hoag LLP
(contained in Exhibit 5.1) |
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24.1 |
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Power of Attorney (included on
the signature page of this
registration statement) |
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