December 9, 2008 Gail F. Goodman Dear Gail:
Exhibit 99.1
December 9, 2008
Xxxx X. Xxxxxxx
Dear Xxxx:
You and Roving Software Inc. (now Constant Contact, Inc.) (the “Company) are parties to an
offer letter dated April 14, 1999 (the “Letter Agreement”), which outlines the terms and conditions
of your employment with the Company. In light of recent tax legislation under Section 409A of the
Internal Revenue Code (“Section 409A”), you and the Company mutually desire to amend certain
provisions of the Letter Agreement as set forth below:
Fifth Paragraph under Heading “Compensation”
The fifth paragraph under the heading “Compensation” shall be deleted in its entirety and replaced
with the following:
“If the Company terminates your employment without cause or if you resign for Good Reason (as
defined below), then you will receive six (6) months base salary and six (6) months continued
health insurance benefits for you and your dependents, which payments and benefits will be made in
accordance with the Company’s normal payroll practices over the six-month period following your
termination of employment. The payments and benefits due, if any, pursuant to this paragraph shall
be subject to the terms and conditions set forth in Exhibit A to this letter.
“Good Reason” shall mean, for purposes of this letter, the occurrence of any of the following
events without your prior written consent:
(i) a material diminution in your base compensation;
(ii) a material diminution in your duties, authority or responsibilities;
(iii) a material relocation; or
(iv) a material breach of this letter or the Letter Agreement;
provided, however, that no such event or condition shall constitute Good Reason unless (x) you give
the Company written notice of termination for Good Reason not more than 90 days after the initial
existence of the condition, (y) the grounds for termination (if susceptible to correction) are not
corrected by the Company within 30 days of its receipt of such notice and (z) your termination of
employment occurs within one year following the Company’s receipt of such notice.”
Except as specifically provided herein, all other terms of the Letter Agreement shall remain in
full force and effect. If the terms of this amendment are acceptable to you, please sign and
return the copy of this amendment enclosed for that purpose no later than December 9, 2008.
Sincerely,
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
| Xxxxxx X. Xxxxxxxxx | ||||
| Title: | Vice President and Chief Financial Officer | |||
The foregoing correctly sets forth the terms of my continued employment with the Company. I am not
relying on any representations other than as set out in the Letter Agreement and the amendment
thereto set forth above. I have been given a reasonable amount of time to consider this amendment
and to consult an attorney and/or advisor of my choosing. I have carefully read this amendment,
understand the contents herein, freely and voluntarily assent to all of the terms and conditions
hereof, and sign my name of my own free act.
| /s/ Xxxx X. Xxxxxxx |
Date: December 9, 2008 |
Exhibit A: Payments subject to Section 409A
Subject to the provisions in this Exhibit A, any severance payments or benefits under the Letter
Agreement, as amended, shall begin only upon the date of your “separation from service” (determined
as set forth below) which occurs on or after the date of termination of your employment. The
following rules shall apply with respect to distribution of the payments and benefits, if any, to
be provided to you under the Letter Agreement, as amended:
1. It is intended that each installment of the severance payments and benefits provided under the
Letter Agreement, as amended, shall be treated as a separate “payment” for purposes of Section 409A
of the Internal Revenue Code and the guidance issued thereunder (“Section 409A”). Neither the
Company nor you shall have the right to accelerate or defer the delivery of any such payments or
benefits except to the extent specifically permitted or required by Section 409A.
2. If, as of the date of your “separation from service” from the Company, you are not a “specified
employee” (within the meaning of Section 409A), then each installment of the severance payments and
benefits shall be made on the dates and terms set forth in the Letter Agreement, as amended.
3. If, as of the date of your “separation from service” from the Company, you are a “specified
employee” (within the meaning of Section 409A), then:
a. Each installment of the severance payments and benefits due under the Letter Agreement, as
amended, that, in accordance with the dates and terms set forth herein, will in all circumstances,
regardless of when the separation from service occurs, be paid within the Short-Term Deferral
Period (as hereinafter defined) shall be treated as a short-term deferral within the meaning of
Treasury Regulation Section 1.409A-1(b)(4) to the maximum extent permissible under Section 409A.
For purposes of the Letter Agreement, as amended, the “Short-Term Deferral Period” means the period
ending on the later of the fifteenth day of the third month following the end of your tax year in
which the separation from service occurs and the fifteenth day of the third month following the end
of the Company’s tax year in which the separation from service occurs; and
b. Each installment of the severance payments and benefits due under the Letter Agreement, as
amended, that is not described in paragraph 3(a) above and that would, absent this subsection, be
paid within the six-month period following your “separation from service” from the Company shall
not be paid until the date that is six months and one day after such separation from service (or,
if earlier, your death), with any such installments that are required to be delayed being
accumulated during the six-month period and paid in a lump sum on the date that is six months and
one day following your separation from service and any subsequent installments, if any, being paid
in accordance with the dates and terms set forth herein; provided, however, that
the preceding provisions of this sentence shall not apply to any installment of severance payments
and benefits if and to the maximum extent that that such installment is deemed to be paid under a
separation pay plan that does not provide for a deferral of compensation by
reason of the application of Treasury Regulation 1.409A-1(b)(9)(iii) (relating to separation pay
upon an involuntary separation from service). Any installments that qualify for the exception
under Treasury Regulation Section 1.409A-1(b)(9)(iii) must be paid no later than the last day of
your second taxable year following your taxable year in which the separation from service occurs.
4. The determination of whether and when your separation from service from the Company has occurred
shall be made and in a manner consistent with, and based on the presumptions set forth in, Treasury
Regulation Section 1.409A-1(h). Solely for purposes of this paragraph 4, “Company” shall include
all persons with whom the Company would be considered a single employer under Section 414(b) and
414(c) of the Code.
5. All reimbursements and in-kind benefits provided under the Letter Agreement, as amended, shall
be made or provided in accordance with the requirements of Section 409A to the extent that such
reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the
requirement that (i) any reimbursement is for expenses incurred during your lifetime (or during a
shorter period of time specified in the Letter Agreement, as amended), (ii) the amount of expenses
eligible for reimbursement during a calendar year may not affect the expenses eligible for
reimbursement in any other calendar year, (iii) the reimbursement of an eligible expense will be
made on or before the last day of the calendar year following the year in which the expense is
incurred and (iv) the right to reimbursement is not subject to set off or liquidation or exchange
for any other benefit.
6. The Company may withhold (or cause to be withheld) from any payments made under the Letter
Agreement, as amended, all federal, state, city or other taxes as shall be required to be withheld
pursuant to any law or governmental regulation or ruling.
.
