Employment Agreement - Art Technology Group Inc. and Robert Burke
Robert Burke
12 Allen Circle
Boxford, MA 01921
March 28, 2003
Dear Bob,
This letter agreement is intended to set forth and confirm certain of
the terms of your employment by Art Technology Group, Inc. ("ATG" or the
"Company"). This letter agreement supersedes and replaces in all respects the
provisions set forth in the fifth, sixth and seventh paragraphs of the offer
letter between ATG and you dated December 4, 2002. ATG hereby agrees with you as
follows:
Either you or the Company may terminate your employment at any time
upon at least 10 business days' written notice; provided that if the Company
terminates your employment without Cause, or you resign for Good Reason at any
time, the Company shall:
(a) pay you immediately for all accrued but unused vacation
and wages for time employed,
(b) provide outplacement services through one or more outside
firms of the Company's choosing through the earlier of 12 months
following the termination date or the date when you secure full time
employment,
(c) continue to pay you your then-current base salary
distributed at regular pay period intervals for a period of 12 months
from the date of termination, and
(d) continue to provide you with health care coverage for a
period of 12 months from the date of termination, provided that you
continue to contribute to such health care coverage at the same rate as
your contribution prior to the termination date.
Notwithstanding the foregoing, if you become employed by any Competitor of ATG
within the 12-month period following the date of a termination without Cause or
Good Reason then ATG shall cease paying your salary continuation and benefits.
Competitors shall be defined as the following entities: BEA, the IBM Websphere
business unit, Blue Martini, Broadvision, and Vignette.
"CAUSE" shall mean:
(1) your willful and continued failure to substantially
perform reasonable assigned duties (other than any such failure
resulting from incapacity due to physical or mental illness or any
failure after you have given notice of termination for Good Reason),
which failure is not cured within 30 days after a written demand for
substantial performance is
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Robert Burke
March 28, 2003
Page 2
received by the Executive from the Board of Directors of the Company
which specifically identifies the manner in which the Board of
Directors believes you have not substantially performed your duties; or
(2) your conviction of a felony (other than through vicarious
liability or involving a vehicular offense) which is materially and
demonstrably injurious to the Company or a crime involving fraud or
embezzlement against the Company.
"GOOD REASON" shall mean the occurrence, without your written consent,
of any of the following events or circumstances:
(1) any change to the title of Chief Executive Officer or the
assignment to you of duties inconsistent in any material respect with
your positions (including status, offices, titles and reporting
requirements);
(2) a material reduction in any aspect of your compensation,
(3) the failure by the Company to
(i) continue in effect any material compensation or
benefit plan or program consistent with those afforded to
other senior executives of the Company (including without
limitation any life insurance, medical, health and accident or
disability plan and any vacation or automobile program or
policy) in which you participate or which is applicable to
you,
(ii) continue your participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amount of benefits provided
and the level of your participation relative to other
participants, than the basis existing immediately prior to the
change, or
(iii) award cash bonuses to you in amounts and in a
manner substantially consistent with and proportional to those
awarded to other senior executives;
(4) any alteration in the Company's 1996 Amended and Restated
Stock Option Plan in any manner
that may exert an adverse impact on you for the grant of the option
agreements granted to you as of December 4, 2002 and January 2, 2003
(the "Option Agreements");
(5) a change by the Company in the location at which you
perform your principal duties to a new location that is both (i)
outside a radius of 35 miles from your principal residence immediately
prior to the change and (ii) more than 20 miles from the location at
which you performed your principal duties immediately prior to the
change;
(6) the material breach of this letter agreement by the
Company;
(7) the failure of the Company to obtain the agreement from
any successor to the Company to assume and perform the provisions set
forth in this letter agreement; or
(8) if, as a result of a Change of Control, as defined in the
Option Agreements, the Company no longer has a publicly traded class of
equity securities and/or is no longer subject to reporting requirements
under the Securities Exchange Act of 1934.
Each reference in the Option Agreements to the Offer Letter dated
December 4, 2002 shall, as of the date hereof, be deemed to refer to this letter
agreement.
The validity, interpretation, construction and performance of this
letter agreement shall be governed by the internal laws of the Commonwealth of
Massachusetts, without regard to
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Robert Burke
March 28, 2003
Page 3
conflicts of law principles, and any disputes shall be resolved by final and
binding arbitration to be conducted in the Greater Boston, MA area pursuant to
American Arbitration Association's rules for the resolution of employment
disputes. This letter agreement may be amended or modified only by a written
instrument executed by both the Company and you.
The parties are executing this letter agreement under seal as of the
date set forth above.
Art Technology Group, Inc.
/s/ Paul Shorthose
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Paul Shorthose
Working Chairman
I accept the terms above.
/s/ Robert Burke
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Robert Burke