e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 31, 2011
(Exact Name of Registrant as Specified in Charter)
|
|
|
|
|
Delaware
|
|
001- 33707
|
|
04-3285398 |
|
(State or Other Jurisdiction of
Incorporation)
|
|
(Commission File Number)
|
|
(IRS Employer
Identification No.) |
|
|
|
|
|
1601 Trapelo Road |
|
|
|
|
Waltham, Massachusetts
|
|
|
|
02451 |
|
(Address of principal executive offices)
|
|
|
|
(Zip Code) |
Registrants telephone number, including area code: (781) 472-8100
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
o |
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
o |
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
|
o |
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
Approval of 2011 Stock Incentive Plan
At the annual meeting of stockholders of Constant Contact, Inc. (the Company) held on May 31,
2011 (the 2011 Annual Meeting), the Companys stockholders approved the 2011 Stock Incentive Plan
(the 2011 Plan), which had previously been adopted by the Companys board of directors subject to
stockholder approval.
The following brief description of the 2011 Plan is qualified in its entirety by reference to the
complete text of the plan, a copy of which is attached hereto as Exhibit 99.1 and is incorporated
herein by reference.
Effectiveness; Number of Shares Available for Issuance
The 2011 Plan became effective upon approval of the 2011 Plan by the Companys stockholders at
the 2011 Annual Meeting.
The number of shares of the Companys common stock reserved for issuance under the 2011 Plan
is:
|
|
|
4,200,000 shares; plus |
|
|
|
|
290,329 shares that were available for issuance under the Companys 2007 Stock
Incentive Plan (the 2007 Plan) as of immediately prior to the approval of the 2011 Plan
by the Companys stockholders; plus |
|
|
|
|
5,059,134 shares subject to awards outstanding under the 2007 Plan and the Companys
1999 Stock Option/Stock Issuance Plan (collectively, with the 2007 Plan, the Predecessor
Plans), if and to the extent those awards expire, terminate, or are otherwise
surrendered, cancelled, forfeited, or repurchased by the Company or otherwise do not
result in all of their shares being issued. |
The foregoing numbers are subject to adjustment in the event of stock splits and other similar
events. Shares issued under the 2011 Plan may consist in whole or in part of authorized but
unissued shares or may be issued shares that the Company has reacquired (provided that open market
purchases of shares using the proceeds from the exercise of awards do not increase the number of
shares available for future grants).
The 2011 Plan uses a fungible share concept under which the awards of options and stock
appreciation rights cause one share per covered share to be removed from the available share pool,
while each full-value award (such as restricted stock or restricted stock units) will be counted
against the pool as two shares.
If an award granted under the 2011 Plan or either of the Predecessor Plans expires or is
terminated, surrendered or canceled without having been fully exercised or is forfeited in whole
- 2 -
or in part (including as the result of shares of common stock subject to such award being
repurchased by the Company) or otherwise results in any common stock not being issued (including as
a result of a stock appreciation right that could have been settled either in cash or in stock
actually being settled in cash), the unused common stock covered by such award will become
available for issuance pursuant to a new award under the 2011 Plan. The shares available for awards
under the 2011 Plan will be credited back to the pool at the same one share or two share counting
methodology that was used to grant them under the fungible share concept, while the shares under
awards made under the Predecessor Plans will be credited back to the pool on a one-for-one basis.
All shares of common stock covered by stock appreciation rights (except stock appreciation
rights that may be settled only in cash) will be counted against the number of shares available for
the grant of awards under the 2011 Plan. If a stock appreciation right is exercised, the Company
will subtract from the shares available under the 2011 Plan the full number of shares subject to
the stock appreciation right multiplied by the percentage of the stock appreciation right actually
exercised, regardless of the number of shares actually used to settle such stock appreciation right
upon exercise. Shares that are tendered or withheld to pay the exercise price of an award or to
satisfy tax withholding obligations (except for shares tendered or withheld to satisfy the tax
withholding obligations with respect to full-value awards) will not be available for issuance
pursuant to new awards under the 2011 Plan.
Types of Awards
The 2011 Plan provides for the grant of incentive stock options intended to qualify under
Section 422 of the Internal Revenue Code of 1986, as amended (the Code), nonstatutory stock
options, stock appreciation rights, restricted stock, restricted stock units, other stock-based
awards and cash-based awards, each of which is described below.
Incentive stock options and nonstatutory stock options. Optionees receive the right to
purchase a specified number of shares of common stock at a specified option price, subject to such
other terms and conditions as are specified in connection with the option grant. Options must be
granted at an exercise price that will be not less than 100% of the fair market value of the common
stock on the date of grant, except in connection with substitute awards relating to acquisitions.
Under present law, incentive stock options and options intended to qualify as performance-based
compensation under Section 162(m) of the Code may not be granted at an exercise price less than
100% of the fair market value of the common stock on the date of grant (or less than 110% of the
fair market value in the case of incentive stock options granted to optionees holding more than 10%
of the voting power of the Company). Under the 2011 Plan, options may not be granted for a term in
excess of seven years. Options may not provide for the automatic grant of additional shares in
connection with the exercise of the original option and options may not provide for the payment or
accrual of dividend equivalents. The 2011 Plan permits the following forms of payment of the
exercise price of options: (i) payment by cash, check or in connection with a cashless exercise
through a broker, (ii) surrender to the Company of shares of common stock, (iii) in the case of
nonstatutory stock options and subject to certain conditions, net exercise in which a portion of
the shares to be issued on exercise are withheld to pay the exercise price, (iv) any other lawful
means, or (v) any combination of these forms of payment.
- 3 -
Director options. The 2011 Plan provides for the automatic grant of options to members of the
Companys board of directors who are not the Companys employees (Non-Employee Directors). On the
commencement of service on the Companys board of directors, each Non-Employee Director will
automatically receive a nonstatutory stock option to purchase 25,000 shares of common stock,
subject to adjustment for changes in capitalization. In addition, on the date of each annual
meeting of stockholders, each Non-Employee Director who is both serving as a director immediately
before and immediately after such meeting will automatically receive a nonstatutory stock option to
purchase 10,000 shares of common stock, subject to adjustment for changes in capitalization, except
that no Non-Employee Director will be eligible to receive this annual option grant unless such
director has served on the Companys board of directors for at least six months. The Companys
board of directors specifically retains the authority to decrease from time to time the number of
shares subject to options automatically granted to Non-Employee Directors under the 2011 Plan and
to grant options, stock appreciation rights, restricted stock, restricted stock units and other
stock-based awards in addition to or in lieu of some or all of the options to be granted to
Non-Employee Directors under the 2011 Plan. Options automatically granted to Non-Employee Directors
will (i) have an exercise price equal to the fair market value of the Companys common stock on the
date of grant, (ii) vest as to one-third of the shares on the first anniversary of the date of
grant provided that the individual is serving on the Companys board of directors on such date (or
in the case of the annual option grants, if earlier, on the date that is one business day prior to
date of the Companys next annual meeting) and as to an additional 8.33% of the shares at the end
of each successive three-month period following the first anniversary of the date of grant, (iii)
expire no more than seven years from the date of grant and (iv) contain such other terms and
conditions as the Companys board of directors determines. Director grants that are not automatic
must be made by a committee of directors, each member of whom is an independent director under
NASDAQ Stock Market, Inc. Marketplace Rules.
Stock appreciation rights. A stock appreciation right is an award entitling the holder, upon
exercise, to receive an amount in common stock or cash or a combination thereof determined by
reference to appreciation, from and after the date of grant, in the fair market value of a share of
common stock. No stock appreciation right granted under the 2011 Plan may provide for the payment
or accrual of dividend equivalents. Under the 2011 Plan, stock appreciation rights may not be
granted for a term in excess of seven years.
Restricted stock and restricted stock unit awards. Restricted stock awards entitle recipients
to acquire shares of common stock, subject to the Companys right to repurchase all or part of such
shares from the recipient in the event that the conditions specified in the applicable award are
not satisfied prior to the end of the applicable restriction period established for such award.
Restricted stock unit awards entitle the recipient to receive shares of common stock to be
delivered at the time such shares vest pursuant to the terms and conditions of the awards, as
established by the Companys board of directors, although the Companys board of directors may
provide that these awards will be settled in cash.
The Companys board of directors will determine the terms and conditions of each restricted
stock or restricted stock unit award, including the conditions for vesting and repurchase (or
forfeiture) and the issue price, if any, subject to the limitations described in Limitations on
Vesting Conditions of Full-Value Awards below.
- 4 -
Restricted stock will accrue ordinary cash dividends, unless the Companys board of directors
determines otherwise and applicable law permits such nonaccrual. Participants holding shares of
restricted stock will only be entitled to such cash dividends if specifically provided in the
restricted stock agreement, will only receive the dividends if and when the restricted stock vests,
and will then receive dividends only prospectively unless the Companys board of directors or the
restricted stock agreement provides for the payment of prior dividends upon or after vesting. Any
dividend payment will be made no later than the latest of the end of the calendar year in which the
dividends are paid to stockholders of that class of stock, the 15th day of the third month
following the date the dividends are paid to stockholders of that class of stock, or the 15th day
of the third month following the date on which the restricted stock to which the dividends pertain
vests. Unless otherwise provided in the restricted stock agreement, if any dividends or
distributions are paid in shares, or consist of a dividend or distribution to holders of the
Companys common stock other than an ordinary cash dividend, the shares, cash or other property
will be subject to the same restrictions on transferability and forfeitability as the shares of
restricted stock with respect to which they were paid.
To the extent provided by the Companys board of directors, in its sole discretion, a grant of
restricted stock units may provide participants with the right to receive dividend equivalents.
Dividend equivalents may be settled in cash and/or shares of common stock and will be subject to
the same restrictions on transfer and forfeitability as the restricted stock units with respect to
which paid, as determined by the Companys board of directors in its sole discretion, subject in
each case to such terms and conditions as the Companys board of directors shall establish, in each
case to be set forth in the applicable award agreement. Any dividend equivalent payments will be
made no later than the latest of the end of the calendar year in which the dividends are paid to
stockholders of the class of stock underlying the restricted stock units, the 15th day of the third
month following the date the dividends are paid to stockholders of that class of stock, or the 15th
day of the third month following the date on which the restricted stock unit to which the dividends
pertain vests, absent a further deferral that complies with Section 409A of the Code.
Other stock-based and cash-based awards. Under the 2011 Plan, the Companys board of
directors has the right to grant other awards based upon the Companys common stock or other
property having such terms and conditions as the Companys board of directors may determine,
including the grant of shares based upon certain conditions, the grant of awards that are valued in
whole or in part by reference to, or otherwise based on, shares of the Companys common stock, and
the grant of awards entitling recipients to receive shares of the Companys common stock to be
delivered in the future. The Company may also grant under the 2011 Plan performance awards or other
awards denominated in cash rather than shares of common stock.
Performance conditions. The Companys board of directors may determine, at the time of grant,
that a restricted stock award, restricted stock unit award or other stock-based award or cash-based
award granted to a non-officer will vest solely upon the achievement of specified performance
criteria. Only the Companys compensation committee may determine, at the time of grant, that a
restricted stock award, restricted stock unit award or other stock-based award or cash-based award
granted to an officer will vest solely upon the achievement of specified performance criteria
designed to qualify for deduction under Section 162(m) of the Code. The performance criteria for
each such award will be based on one or more of the following measures: net income, earnings before
or after discontinued operations, interest, taxes,
- 5 -
depreciation, amortization and/or stock based compensation expense, operating profit before or
after discontinued operations and/or taxes, sales, revenue, product and service billings, deferred
revenue, sales or revenue growth, average monthly or quarterly revenue growth, earnings growth,
product and service billings growth, customer growth, deferred revenue growth, cost related to
product and service billings, cash flow, operating cash flow, free cash flow or cash position,
gross margins, cost related to product and service billings as a percentage of product and service
billings, value based financial metrics, stock price, market share, return on sales, assets, equity
or investment, improvement of financial ratings, achievement of balance sheet or income statement
objectives or total stockholder return. These performance measures may be absolute in their terms
or measured against or in relationship to other companies comparably, similarly or otherwise
situated.
These performance measures may be adjusted to exclude any one or more of (i) extraordinary
items, (ii) gains or losses on the dispositions of discontinued operations, (iii) the cumulative
effects of changes in accounting principles, (iv) non-cash compensation expenses, (v) the
write-down of any asset, and (vi) charges for restructuring and rationalization programs. Such
performance measures: (x) may vary by participant and may be different for different awards; (y)
may be particular to a participant or the department, branch, line of business, subsidiary or other
unit in which the participant works and may cover such period as may be specified by the Companys
compensation committee; and (z) will be set by the Companys compensation committee within the time
period prescribed by, and will otherwise comply with the requirements of, Section 162(m).
The Companys compensation committee may adjust downwards, but not upwards, the cash or number
of shares payable pursuant to performance-based awards designed to qualify for deduction under
Section 162(m) of the Code, and the Companys compensation committee may not waive the achievement
of the applicable performance measures except in the case of the death or disability of a
participant or a change in control of the Company.
Awards that are not intended to qualify as performance-based compensation may be based on
these or such other performance measures as the Companys board of directors may determine.
Transferability of Awards
In general, awards may not be sold, assigned, transferred, pledged or otherwise encumbered by
the person to whom they are granted, either voluntarily or by operation of law, except by will or
the laws of descent and distribution or, other than in the case of an incentive stock option,
pursuant to a qualified domestic relations order. During the life of the participant, awards are
exercisable only by the participant. However, with the Companys board of directors consent, a
participant can transfer an award without payment to an immediate family member, family trust, or
certain other related entities (to the extent a Registration Statement on Form S-8 would cover the
transferee).
- 6 -
Eligibility to Receive Awards
Our employees, officers, directors, consultants and advisors and those of the Companys
subsidiaries and of other business ventures in which the Company has a controlling interest are
eligible to be granted awards under the 2011 Plan, to the extent applicable. Under present law and
the 2011 Plan, however, incentive stock options may only be granted to the Companys and the
Companys subsidiaries employees.
The maximum number of shares with respect to which awards may be granted to any participant
under the 2011 Plan may not exceed 750,000 shares per calendar year. Grants of cash-based
performance awards will be limited to grants of $2 million per calendar year per individual.
Administration
The 2011 Plan is administered by the Companys board of directors. Our board of directors has
the authority to adopt, amend and repeal the administrative rules, guidelines and practices
relating to the 2011 Plan and to interpret the provisions of the 2011 Plan. Pursuant to the terms
of the 2011 Plan, the Companys board of directors may delegate authority under the 2011 Plan to
one or more committees or subcommittees of the Companys board of directors. Our board of directors
has authorized the Companys compensation committee to administer certain aspects of the 2011 Plan,
including the granting of options and other awards to executive officers and other employees. In
addition, the Companys board of directors may delegate to one or more of the Companys officers
the power to grant options and other awards that constitute stock rights under Delaware law to
eligible participants who are not executive officers.
Subject to any applicable limitations contained in the 2011 Plan, the Companys board of
directors, the Companys compensation committee, or any other committee to whom the Companys board
of directors delegates authority, as the case may be, selects the recipients of awards and
determines (i) the number of shares of common stock covered by options and the dates upon which
such options become exercisable, (ii) the exercise price of options (which may not be less than
100% of fair market value of the Companys common stock), (iii) the duration of options (which may
not exceed seven years), and (iv) the number of shares of common stock subject to any stock
appreciation right, restricted stock award, restricted stock unit award or other stock-based awards
and the terms and conditions of such awards and cash awards, including conditions for repurchase
(or forfeiture), issue price and repurchase price, subject to the limitations described in
Limitations on Vesting Conditions of Full-Value Awards below.
Our board of directors is required to make appropriate adjustments in connection with the 2011
Plan and any outstanding awards to reflect stock splits, stock dividends, recapitalizations,
spin-offs and other similar changes in capitalization. The 2011 Plan also contains provisions
addressing the consequences of any Reorganization Event, which is defined as (a) the Companys
merger or consolidation with or into another entity as a result of which all of the Companys
common stock is converted into or exchanged for the right to receive cash, securities or other
property, or is cancelled or (b) any exchange of all of the Companys common stock for cash,
securities or other property pursuant to a share exchange transaction or (c) the Companys
liquidation or dissolution. In connection with a Reorganization Event, the Companys board of
- 7 -
directors may take any one or more of the following actions as to all or any outstanding
awards on such terms as the Companys board of directors determines: (i) provide that awards will
be assumed, or substantially equivalent awards will be substituted, by the acquiring or succeeding
corporation (or an affiliate thereof), (ii) upon written notice, provide that all unexercised
options or other unexercised awards will terminate immediately prior to the consummation of such
Reorganization Event unless exercised (to the extent then exercisable) within a specified period
following the date of such notice, (iii) provide that outstanding awards will become realizable or
deliverable, or restrictions applicable to an award will lapse, in whole or in part prior to or
upon such Reorganization Event, (iv) in the event of a Reorganization Event under the terms of
which holders of common stock will receive upon consummation thereof a cash payment for each share
surrendered in the Reorganization Event (the Acquisition Price), make or provide for a cash
payment to an award holder equal to (A) the Acquisition Price times the number of shares of common
stock subject to the holders awards (to the extent the exercise price does not exceed the
Acquisition Price) minus (B) the aggregate exercise price of all the holders outstanding awards,
in exchange for the termination of such awards, (v) provide that, in connection with the Companys
liquidation or dissolution, awards will convert into the right to receive liquidation proceeds (if
applicable, net of the exercise price, measurement price or purchase price thereof) and (vi) any
combination of the foregoing.
Substitute Awards
In connection with a merger or consolidation of an entity with the Company or the acquisition
by the Company of property or stock of an entity, the Companys board of directors may grant awards
in substitution for any options or other stock or stock-based awards granted by such entity or an
affiliate thereof. Substitute awards may be granted on such terms, as the Companys board of
directors deems appropriate in the circumstances, notwithstanding any limitations on awards
contained in the 2011 Plan. Substitute awards will not count against the overall share limit of the
2011 Plan, except as may be required by the Code.
Restrictions on Repricing
Unless the Companys stockholders approve such action (or it is appropriate under a change in
capitalization or a Reorganization Event), the 2011 Plan provides that the Company may not (1)
amend any outstanding option or stock appreciation right granted under the 2011 Plan to provide an
exercise price per share that is lower than the then-current exercise price per share of such
outstanding award, (2) cancel any outstanding option or stock appreciation right (whether or not
granted under the 2011 Plan) and grant in substitution therefor new awards under the 2011 Plan
(other than as substitute awards as described above) covering the same or a different number of
shares of common stock and having an exercise price per share lower than the then-current exercise
price per share of the cancelled award, (3) cancel in exchange for a cash payment any options or
stock appreciation rights that have an exercise price per share above the then-current fair market
value, or (4) take any other action that constitutes a repricing within the meaning of the rules
of the NASDAQ Stock Market.
- 8 -
Limitations on Vesting Conditions of Full-Value Awards
No vesting condition applicable to any full-value award that is based on performance criteria
(and/or level of achievement as compared to such criteria) may be based on performance over a
period of less than one year and no such vesting condition that is based solely upon continued
employment or the passage of time may provide for vesting in full of a full-value award in less
than pro rata installments over three years, in each case other than (x) with respect to awards
covering a number of shares not exceeding 10% of the total number of shares subject to the 2011
Plan, (y) full-value awards that are issued upon exercise or settlement of options or stock
appreciation rights or (z) upon death, disability or retirement of the participant, in each case as
specified in the agreement evidencing such full-value award.
Acceleration
Our board of directors may at any time provide that any award will become immediately
exercisable in whole or in part, free of some or all restrictions or conditions, or otherwise
realizable in whole or in part, as the case may be.
Provisions for Foreign Participants
Our board of directors may modify awards granted to participants who are foreign nationals or
employed outside the United States or establish subplans or procedures under the 2011 Plan to
recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with
respect to tax, securities, currency, employee benefit or other matters.
Amendment or Termination
No award may be made under the 2011 Plan after May 31, 2021 but awards previously granted may
extend beyond that date. Our board of directors may at any time amend, suspend or terminate the
2011 Plan; provided that, to the extent determined by the Companys board of directors, no
amendment requiring stockholder approval under any applicable legal, regulatory or listing
requirement will become effective until such stockholder approval is obtained.
- 9 -
Item 5.07 Submission of Matters to a Vote of Security Holders.
At the 2011 Annual Meeting, there were 26,906,854 shares of the Companys common stock
represented in person or by proxy, constituting 91.32% of the shares of the Companys common stock
issued and outstanding and entitled to vote at the 2011 Annual Meeting, and the Companys
stockholders voted upon the following proposals:
1. The following nominees were elected to the Companys board of directors as Class I directors for
terms expiring at the 2014 annual meeting of stockholders.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For |
|
Withheld |
|
Broker Non-Votes |
Thomas Anderson |
|
|
23,424,434 |
|
|
|
949,440 |
|
|
|
2,532,980 |
|
Sharon T. Rowlands |
|
|
24,294,531 |
|
|
|
79,343 |
|
|
|
2,532,980 |
|
Following the annual meeting, John Campbell and Daniel T.H. Nye having terms expiring in 2012 and
Robert P. Badavas, Gail F. Goodman and William S. Kaiser having terms expiring in 2013, continue in
office.
2. The Companys 2011 Stock Incentive Plan was approved.
|
|
|
|
|
For: |
|
|
16,590,601 |
|
Against: |
|
|
7,767,234 |
|
Abstain: |
|
|
16,039 |
|
Broker Non-Votes: |
|
|
2,532,980 |
|
3. The appointment of PricewaterhouseCoopers LLP as the independent registered public accounting
firm for the Company for the fiscal year ending December 31, 2011 was ratified.
|
|
|
|
|
For: |
|
|
26,878,505 |
|
Against: |
|
|
17,512 |
|
Abstain: |
|
|
10,837 |
|
4. A non-binding, advisory proposal on the compensation of the Companys named executive officers
was approved.
|
|
|
|
|
For: |
|
|
23,406,834 |
|
Against: |
|
|
952,681 |
|
Abstain: |
|
|
14,359 |
|
Broker Non-Votes: |
|
|
2,532,980 |
|
- 10 -
5. The stockholders recommended, in a non-binding, advisory vote, that future stockholder advisory
votes on executive compensation be held every year.
|
|
|
|
|
Every Year: |
|
|
22,351,317 |
|
Every 2 Years: |
|
|
679,529 |
|
Every 3 Years: |
|
|
1,326,939 |
|
Abstain: |
|
|
16,089 |
|
Broker Non-Votes: |
|
|
2,532,980 |
|
After taking into consideration the foregoing voting results and the prior
recommendation of the Companys board of directors in favor of an annual advisory stockholder vote on executive compensation, the
Companys board of directors intends to hold future stockholder advisory votes on executive
compensation every year.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
See Exhibit Index attached hereto and incorporated herein by reference.
- 11 -
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
|
|
|
|
|
CONSTANT CONTACT, INC.
|
|
Date: June 2, 2011 |
By: |
/s/ Robert P. Nault
|
|
|
|
Robert P. Nault |
|
|
|
Vice President and General Counsel |
|
|
- 12 -
EXHIBIT INDEX
|
|
|
Exhibit No. |
|
Description |
|
|
|
99.1
|
|
2011 Stock Incentive Plan (Incorporated by reference to
Exhibit 99.1 to the Companys Registration Statement on Form
S-8 (File No. 333-174621) |