CONSTANT CONTACT, INC. Form of Performance Stock Option Agreement (Customer Based) Granted Under 2007 Stock Incentive Plan
Exhibit 10.43
Form of Performance Stock Option Agreement (Customer Based)
Granted Under 2007 Stock Incentive Plan
Granted Under 2007 Stock Incentive Plan
1. Grant of Option.
This agreement evidences the grant by Constant Contact, Inc., a Delaware corporation (the
“Company”), on January 24, 2011 (the “Grant Date”) to [_________], an employee 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 2007 Stock Incentive Plan (the “Plan”), a total of [_________] shares (the “Shares”)
of common stock, $0.01 par value per share, of the Company (“Common Stock”) at $28.27 per Share.
Unless earlier terminated or unless this option expires earlier pursuant to Section 2(a) below,
this option shall expire at 5:00 p.m., Eastern time, on January 24, 2021 (the “Final Exercise
Date”).
It is intended that the option evidenced by this agreement shall 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”), to the fullest extent permitted thereby. 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.
(a) This option will become exercisable (“vest”) as of December 31, 2011 (the “Vest Date”) as
to:
(1) 50% of the Shares if the Company achieves the Level I Target but not the Level II Target
(each as defined in Annex 1 hereto), as determined by the Company’s Board of Directors (or
a committee thereof); and
(2) 100% of the Shares if the Company achieves the Level II Target, as determined by the
Company’s Board of Directors (or a committee thereof).
This option shall expire and terminate as of the Vest Date with respect to any portion of the
Shares that remains unvested as of the Vest Date (after giving effect to the foregoing clauses (1)
and (2)).
(b) 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.
(c) In the event of a Change of Control (as defined below) that closes prior to the Vest Date,
notwithstanding anything herein to the contrary, immediately prior to the closing of such Change of
Control, 50% of the Shares shall automatically vest and become exercisable. In
such event, the option shall expire and terminate as to the balance of the Shares as of
immediately prior to the closing of such Change of Control.
(d) For the purposes of this Agreement, “Change of Control” shall mean (i) the consolidation
or merger of the Company with or into any other corporation or other entity (other than a merger or
consolidation in which all or substantially all of the individuals and entities who were beneficial
owners of the outstanding securities entitled to vote generally in the election of directors of the
Company immediately prior to such transaction beneficially own, directly or indirectly, more than
50% of the outstanding securities entitled to vote generally in the election of directors of the
resulting, surviving or acquiring corporation in such transaction), (ii) the sale of all or
substantially all of the properties and assets of the Company as an entirety to any other person,
or (iii) the sale or transfer, in a single transaction or series of related transactions, of
outstanding capital stock representing at least a majority of the voting power of the outstanding
capital stock of the Company immediately following such transaction.
3. Exercise of Option
(a) Form of Exercise.
(1) Except as otherwise permitted in Section 3(a)(2) below, 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. 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.
Each exercise shall be accompanied by payment in full for the Shares purchased pursuant to such
exercise in the manner provided in the Plan.
(2) If permitted by the Company at the time of exercise, this option may be exercised by
providing a notice of exercise to a third-party administrator (as the Company’s agent) by or
through any means permitted by the Company and such third-party administrator from time to time,
including, without limitation, by providing notice of exercise to the third-party administrator by
using the third-party administrator’s Internet website to provide notice of exercise, and in such
event, the notice of exercise may be provided, but shall not be required to be provided, in
writing. For purposes hereof, “third-party administrator” means E*Trade Corporate Financial
Services, Inc. as the Company’s third-party stock option administrator, or, as applicable, any
successor third-party stock option administrator designated by the Company from time to time.
(b) Continuous Relationship with the Company Required. Except as otherwise provided
in this Section 3, this option may not be exercised unless the Participant, at the time he or she
exercises this option, is, and has been at all times since the Grant Date, an employee or officer
of, or consultant or advisor to, the Company or any parent or subsidiary of the Company as defined
in Section 424(e) or (f) of the Code (an “Eligible Participant”).
(c) Termination of Relationship with the Company. If the Participant ceases to be an
Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the
right to exercise this option shall terminate three months after such cessation (but in no event
after the Final Exercise Date), provided that this option shall be exercisable only
to the extent
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that the Participant was entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date, violates the
non competition or confidentiality provisions of any employment contract, confidentiality and
nondisclosure agreement or other agreement between the Participant and the Company, the right to
exercise this option shall terminate immediately upon written notice to the Participant from the
Company describing such violation.
(d) Exercise Period Upon Death or Disability. If the Participant dies or becomes
disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date
while he or she is an Eligible Participant and the Company has not terminated such relationship for
“cause” as specified in paragraph (e) below, this option shall be exercisable, within the period of
one year following the date of death or disability of the Participant, by the Participant (or in
the case of death by an authorized transferee), provided that this option shall be
exercisable only to the extent that this option was exercisable by the Participant on the date of
his or her death or disability, and further provided that this option shall not be exercisable
after the Final Exercise Date.
(e) Termination for Cause. If, prior to the Final Exercise Date, the Participant’s
employment is terminated by the Company for Cause (as defined below), the right to exercise this
option shall terminate immediately upon the effective date of such termination of employment. If
the Participant is party to an employment or severance agreement with the Company that contains a
definition of “cause” for termination of employment, “Cause” shall have the meaning ascribed to
such term in such agreement. Otherwise, “Cause” shall mean (i) the Participant’s willful
misconduct, (ii) the Participant’s material failure to perform the Participant’s
reasonably-assigned duties and responsibilities to the Company, (iii) any breach by the Participant
of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other
similar agreement between the Company and the Participant or any of the Company’s written policies
or procedures, including, but not limited to, the Company’s Code of Business Conduct and Ethics and
its written policies and procedures regarding sexual harassment, computer access and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, or (iv) the Participant’s conviction of, or plea of guilty or nolo contendere to, (x) any
felony or (y) with respect to the Participant’s employment, any misdemeanor that is materially
injurious to the Company, in each case (i) through (iv), as determined by the Company, which
determination shall be conclusive. The Participant shall be considered to have been discharged for
Cause if the Company determines, within 30 days after the termination of the Participant’s
employment, that discharge for Cause was warranted.
4. Tax Matters.
(a) Withholding. No Shares will be issued pursuant to the exercise of this option
unless and until the Participant pays to the Company, or makes provision satisfactory to the
Company for payment of, any federal, state or local withholding taxes required by law to be
withheld in respect of this option.
(b) Disqualifying Disposition. If the Participant disposes of Shares acquired upon
exercise of this option within two years from the Grant Date or one year after such Shares were
acquired pursuant to exercise of this option, the Participant shall notify the Company in writing
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of such disposition.
5. 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.
6. 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 by its duly authorized
officer. This option shall take effect as a sealed instrument.
| CONSTANT CONTACT, INC. |
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| Dated: | By: | |||
| Name: | ||||
| Title: | ||||
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PARTICIPANT’S ACCEPTANCE
By signing below (or by accepting the foregoing option through such other means as may be
established by the Company or its third-party administrator from time to time, including, without
limitation, via the third-party administrator’s Internet website), the Participant accepts the
foregoing option and agrees to the terms and conditions thereof and acknowledges receipt of a copy
of the Company’s 2007 Stock Incentive Plan.
| PARTICIPANT: |
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| Address: | ||||
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Annex 1
Performance Targets
“Level I Target” shall mean achievement by the Company of __________ unique customers as of the
Vest Date.
“Level II Target” shall mean achievement by the Company of __________ unique customers as of the
Vest Date.