Employment Agreement - Roving Software Inc. and Richard Turcott
[Constant Contact letterhead]
December 6, 2006
Richard Turcott
[Address]
Re: Separation of Employment
Dear Richard:
Your employment with Roving Software, Inc. ("Constant Contact" or "the
Company") and Administaff is being terminated. The purpose of this letter is to
establish an amicable arrangement for ending your employment in a manner that
will permit you to obtain certain payments and other benefits in return for,
among other things, your release of any claims against the Company.
Your final day of employment will be January 1, 2007 ("Separation Date").
You will receive your final paycheck according to the regular payroll
cycle. It will be comprised of: (1) all salary due and owing to you through the
Separation Date, less applicable state and federal taxes and other deductions;
and (2) payment equal to the value of all accrued, unused vacation through the
Separation Date, less applicable state and federal taxes and other deductions.
Administaff will provide you with written documentation concerning your right to
unemployment benefits.
Following the Separation Date, the Company will continue to maintain you as
eligible for participation its health insurance plan as required by, and insofar
as you elect coverage under, the Consolidated Omnibus Budget Reconciliation Act
of 1985 (often referred to as "COBRA"). Information concerning your insurance
continuation under COBRA will be provided to you separately. Your coverage under
all other Company-sponsored insurance plans will expire on the Separation Date,
unless otherwise specified by applicable plan documents.
If you are enrolled in the Company's group health and dental plans on the
Separation Date and elect, no later than the effective date of this Agreement,
to continue your coverage and that of your eligible dependents in those plans
under the federal law known as "COBRA," the Company will pay the premium cost of
that coverage through June 30, 2007 or, if less, until the date you become
eligible for coverage under the health and/or dental plan of another employer.
You agree to notify Constant Contact immediately if you become eligible for
health and/or dental coverage from another employer during the ninety days
following the Separation Date and to repay any excess contributions made by the
Company. After the Company's contributions end, you may continue coverage for
the remainder of the COBRA period, if any, by paying the full premium cost plus
a small administrative fee.
Additionally, if you are interested in converting your group life insurance
into an individual policy, please contact human resources.
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Except for funds that may have vested in the Company-sponsored benefit
plans or expressly referenced in this letter, you will not be entitled to any
other compensation or benefits. To the extent you have any stock options, you
are advised to refer to the applicable stock option agreements and plan for
guidance as to your rights and obligations.
You must immediately turn over all confidential information and property
belonging to the Company, including, without limitation, all records, files,
memoranda, notes, designs, data, reports, price lists, customer lists, drawings,
plans, computer programs, software, software documentation, hardware, sketches,
laboratory and research notebooks and other documents, as well as all copies or
reproductions of such material relating to the business of the Company. You are
also advised that you will be expected to abide by your obligations under your
Nondisclosure, Non-competition and Developments Agreement, a copy of which is
attached.
The Company offers you the opportunity to obtain severance pay equivalent
to six months of base salary, less appropriate federal and state taxes and other
deductions ("Severance Benefits"). YOU WILL BE ENTITLED TO THE SEVERANCE
BENEFITS ONLY IF YOU AGREE TO THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS,
TIMELY EXECUTE THIS AGREEMENT AND DO NOT REVOKE IT DURING THE SEVEN-DAY
REVOCATION PERIOD (EXPLAINED IN MORE DETAIL BELOW). The Company will pay the
Severance Benefits in a lump sum of $82,500.00 within a reasonable period of
time after this agreement becomes enforceable and non-revocable.
Additionally you will be eligible for a 2006 fourth quarter bonus based on
your fourth quarter targeted AMRG incentive, subject to the terms of the
existing plan. This payment will be made to you in accordance to the regular
payroll cycle for performance bonuses in 2007. You are also eligible to receive
up to 3 months of outplacement services through ClearRock.
In exchange for the Severance Benefits, you agree and/or acknowledge the
following:
(1) You agree to abide by the terms and conditions of your Nondisclosure,
Non-competition and Developments Agreement, which you acknowledge remains in
full force and effect.
(2) You acknowledge receipt of the Final Pay and agree that it represents
all salary, wages, accrued vacation, and compensation due and owing to you.
(3) You understand that the Severance Benefits constitute special
consideration in exchange for the promises you make herein, and that the Company
is not otherwise obligated to provide you with such Severance Benefits. In
consideration of the Company's commitments to you under this agreement, you
hereby fully, forever, irrevocably and unconditionally release, remise and
discharge the Company, its parent, subsidiaries and affiliates, as well as its
and their respective past and present officers, directors, shareholders,
employees, agents, representatives, employee benefits plans and plan
administrators and fiduciaries (each in their individual and corporate
capacities) (collectively, the "Releasees") from any and all debts, demands,
actions, contracts, agreements, claims, and demands (including attorney's fees
and costs) that you have or may have against any of the Releasees under any
federal, state, or local law, as such claims exist or may exist through the date
you execute this letter, including, without limitation, any and all claims
concerning your employment with and separation from the Company. These released
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claims further include, but are not limited to, any you may arguably have or
have had under the Age Discrimination in Employment Act, Americans with
Disabilities Act, Title VII of the Civil Rights Act of 1964, Executive Order
11246, Executive Order 11141, the Employee Retirement Income Security Act of
1974 ("ERISA"), 29 U.S.C. Section 1001 et seq., the Fair Credit Reporting Act,
15 U.S.C. Section 1681 et seq., the Worker Adjustment and Retraining
Notification Act ("WARN"), 29 U.S.C. Section 2101 et seq., Section 806 of the
Corporate and Criminal Fraud Accountability Act of 2002,18 U.S.C. 1514(A),
Massachusetts General Laws Chapter 151B, the Massachusetts Civil Rights Act,
M.G.L. c.12, Sections 11H and 11I, the Massachusetts Equal Rights Act. M.G.L.
c.93, Section 102 and M.G.L. c.214, Section 1C, the Massachusetts Labor and
Industries Act, M.G.L. c.149, Section 1 et seq., the Massachusetts Privacy Act,
M.G.L. c.214, Section 1B and the Massachusetts Maternity Leave Act, M.G.L.
c.149, Section 105(d), all as amended, all common law claims, including, but not
limited to, actions in defamation, intentional and negligent infliction of
emotional distress, misrepresentation, fraud, wrongful discharge and breach of
contract, and all other claims arising under any federal, state, or local law
(including a claim for retaliation) not expressly referenced above; provided,
however, that nothing in this letter agreement prevents you from filing a charge
with, cooperating with, or participating in any proceeding before the Equal
Employment Opportunity Commission or a state fair employment practices agency
(except that you acknowledge that you may not be able to recover any monetary
benefits in connection with any such claim, charge or proceeding).
(4) To the extent permitted by law, you agree that you will not disclose
the terms of this agreement to anyone outside your immediate family, your
attorney and your financial advisors, and you will ensure that they keep this
information confidential, except where disclosure is required by law or is
agreed to in writing by the Company.
(5) To the extent permitted by law, you agree that you will not disparage
or defame the Company or any of the Releasees to any third party, including,
without limitation, any media outlet.
(6) You represent that the terms of this agreement set forth our entire
understanding regarding this subject; and you represent that you have not
assigned, transferred or conveyed, at any time, to any person or entity, any
alleged right, claim, or cause of action generally or specifically referred to
herein, and will not do so in the future. This agreement shall be binding upon
and shall inure to the benefit of you, the Company, and the Releasees, as well
as your and their heirs, administrators, executors, representatives,
predecessors, successors and assigns.
(7) You acknowledge that nothing in this letter constitutes an admission by
the Company of any liability or wrongdoing with respect to any of the
commitments or payments made hereunder, or in any other regard.
(8) You represent that you have entered into this agreement voluntarily and
based upon your own judgment that you are fully aware of the contents and legal
effect of this letter, including the fact that you are releasing all claims you
may have against the Company and the Releasees for, among other things, age
discrimination. You acknowledge that you have been given the opportunity to
consider this agreement for 21 days before executing it and that, by this
letter; we have advised you to consult with an attorney about its terms. In the
event that you have executed this agreement within less than the 21 days of the
date of its delivery to you, you
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acknowledge that your decision to do so was entirely voluntary and that you had
the opportunity to consider this agreement for the entire 21-day period. The
Company acknowledges that for a period of seven days from the date of the
execution of this agreement, you may revoke this agreement by written notice to
the Company. If you revoke your acceptance, you will not be entitled to any
Severance Benefits. This agreement will become binding and enforceable after the
expiration of the seven-day revocation period provided that you have not revoked
your acceptance of it.
(9) You understand and agree that no delay or omission by the Company in
exercising any right under this letter agreement shall operate as a waiver of
that or any other right. A waiver or consent given by the Company on any one
occasion shall be effective only in that instance and shall not be construed as
a bar to or waiver of any right on any other occasion.
(10) You agree that should any provision of this letter agreement be
declared or be determined by any court of competent jurisdiction to be illegal
or invalid, the validity of the remaining parts, terms or provisions shall not
be affected thereby and said illegal or invalid part, term or provision shall be
deemed not to be a part of this letter agreement.
(11) You agree that Massachusetts law shall govern this agreement and that
the terms of this agreement shall be construed as a whole and not for or against
either party. You further agree that, should any court action be brought by
either you or the Company or any Releasees concerning this agreement, you will
submit yourself to the personal jurisdiction of the courts sitting within the
Commonwealth of Massachusetts.
(12) You may retain the laptop computer and use of the Company email
address for up to six months following the Separation Date. You agree to return
the computer at the end of the six month period or sooner, or at such later date
to which the Company agrees.
This agreement supersedes all prior discussions, understandings, and
agreements concerning the subject matters discussed herein. This agreement may
be amended or modified only by a written document signed by you and the Company.
To confirm that you understand and agree to these terms, please sign both
originals in the space provided below and return one to us for our files by no
later than December 27, 2006.
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THIS OFFER EXPIRES IF YOU HAVE NOT EXECUTED IT WITHIN 21 DAYS OF RECEIVING
IT. NOTWITHSTANDING THE FOREGOING, YOU WILL STILL BE ENTITLED TO REVOKE YOUR
ACCEPTANCE WITHIN SEVEN (7) DAYS AFTER YOUR EXECUTION OF THIS AGREEMENT.
Sincerely,
Roving Software, Inc.
By: /s/ Gail F. Goodman
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Agreed to and accepted this 22nd day of 2006.
/s/ Richard Turcott
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Richard Turcott