EXHIBIT 10.33
CONCORD COMMUNICATIONS, INC.
MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND KEVIN CONKLIN
September 9, 2002
Mr. Kevin Conklin
138 West Berlin Road
Bolton, MA
01740
Dear Kevin:
The purpose of this letter agreement is to memorialize the terms and conditions
under which your employment with Concord Communications, Inc. ("Concord") will
terminate upon your resignation from Concord on September 30, 2002 (the
"Termination Date"). In consideration for Concord agreeing to these terms and
conditions, you agree to execute this letter agreement on or before September
30, 2002. By signing and returning this letter agreement to Concord, you agree
to the terms and conditions set forth in the numbered paragraphs below,
including the release of claims set forth in paragraph 3. Therefore, you are
advised to consult with your attorney before signing this letter and you may
take up to twenty one (21) days to do so. If you sign this letter agreement, you
may change your mind and revoke your agreement during the seven (7) day period
after you have signed it. If you do not so revoke, this letter agreement will
become a legally binding agreement between you and Concord upon the expiration
of the seven (7) day revocation period.
YOU WILL RECEIVE PAYMENT ON SEPTEMBER 30, 2002 FOR ANY UNUSED VACATION TIME
ACCRUED THROUGH THE TERMINATION DATE. ALSO, REGARDLESS OF SIGNING THIS LETTER,
YOU MAY ELECT TO CONTINUE RECEIVING GROUP MEDICAL/DENTAL INSURANCE PURSUANT TO
THE FEDERAL "COBRA" LAW, 29 U.S.C. SECTION 1161 ET SEQ. ALL PREMIUM COSTS SHALL
BE PAID BY YOU ON A MONTHLY BASIS FOR AS LONG AS, AND TO THE EXTENT THAT, YOU
REMAIN ELIGIBLE FOR COBRA CONTINUATION. YOU SHOULD CONSULT THE COBRA MATERIALS
TO BE PROVIDED BY CONCORD FOR DETAILS REGARDING THESE BENEFITS. IF YOU CHOOSE
NOT TO SIGN THIS LETTER AGREEMENT, OR REVOKE THIS LETTER AGREEMENT IN THE NEXT
SEVEN (7) DAYS, ALL OTHER BENEFITS, INCLUDING LIFE INSURANCE AND LONG-TERM
DISABILITY, WILL CEASE UPON YOUR TERMINATION DATE.
THE FOLLOWING NUMBERED PARAGRAPHS SET FORTH THE TERMS AND CONDITIONS WHICH WILL
APPLY IF YOU TIMELY SIGN AND RETURN THIS LETTER AGREEMENT AND DO NOT REVOKE IT
WITHIN THE SEVEN (7) DAY PERIOD:
TERMINATION DATE - Your Termination Date is September 30, 2002. You will
be paid your normal compensation until the Termination Date. Additionally,
your stock options will continue to vest until the Termination Date. Stock
options must be exercised within sixty (60) days of your Termination Date.
2. DESCRIPTION OF SEVERANCE BENEFITS - Upon signing this letter agreement,
Concord will pay to you an amount equal to your regular base salary for
six (6) months beginning after the Termination Date. All amounts will be
payable on the normal payroll cycle. Any payments made to you under this
paragraph are subject to applicable, if any, federal, state and local
withholding, payroll and other taxes. Provided that you sign this letter
agreement prior to September 30, 2002, you will receive the medical,
dental and other benefits normally provided to Concord employees from the
Termination Date until the termination of your payments from Concord.
3. RELEASE - In consideration for Concord agreeing to the terms of this
letter agreement and providing the severance benefits contained above,
which includes payment of benefits which you acknowledge you would not
otherwise be entitled to receive, you hereby fully, forever, irrevocably
and unconditionally release, remise and discharge Concord, its officers,
directors, stockholders, corporate affiliates, and subsidiaries, agents
and employees from any and all claims, charges, complaints, demands,
actions, causes of action, suits, rights, debts, sums of money, costs,
accounts, reckonings, covenants, contracts, agreements, promises, doings,
omissions, damages,
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executions, obligations, liabilities, and expenses (including attorneys'
fees and costs), of every kind and nature which you ever had or now have
against Concord, its officers, directors, stockholders, corporate
affiliates, subsidiaries and parent companies, agents and employees
arising out of your employment with or separation from Concord including,
but not limited to, all employment discrimination claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq., the Age
Discrimination in Employment Act, 29 U.S.C., Section 621 et seq., the
Americans With Disabilities Act of 1990, 42 U.S.C., Section 12101 et seq.,
and the Massachusetts Fair Employment Practices Act, M.G.L. c.151B,
Section 1 et seq., all as amended, and all claims arising out of the Fair
Credit Reporting Act, 15 U.S.C. Section 1681 et seq., the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Section 1001
et seq., 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., and the Massachusetts Privacy Act,
M.G.L. c.214, Section 1B, all as amended, and all common law claims
including, but not limited to, actions in tort, defamation and breach of
contract, and any claim or damage arising out of your employment with or
separation from Concord (including a claim for retaliation) under any
common law theory or any federal, state or local ordinance not expressly
referenced above.
4. NON-DISCLOSURE AND NON-COMPETITION - You agree to keep confidential all
non-public information concerning Concord which you acquired during the
course of your employment with Concord. You agree that you will not
compete directly with Concord for a period of six (6) months following
execution of this letter agreement by you.
5. RETURN OF COMPANY PROPERTY - You confirm that you will, prior to your
Termination Date, return to Concord all keys, files, records (and copies
thereof), equipment and other Concord-owned property in your possession.
You further agree to leave intact all electronic Concord documents,
including those which you developed or help develop during your
employment.
6. NON-DISPARAGEMENT - You understand and agree that as a condition for
payment to you of the consideration herein described, you shall not make
any false, disparaging or derogatory statements to any media outlet,
industry group, financial institution or current or former employee,
consultant, client or customer of Concord regarding Concord or any of its
directors, officers, employees, agents or representatives or about
Concord's business affairs and financial condition.
7. AMENDMENT - This letter agreement shall be binding upon the parties and
may not be modified in any manner, except by an instrument in writing of
concurrent or subsequent date signed by duly authorized representatives of
the parties hereto. This letter agreement is binding upon and shall inure
to the benefit of the parties and their respective agents, assigns, heirs,
executors, successors and administrators.
8. WAIVER OF RIGHTS - No delay or omission by Concord 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 Concord on any one occasion shall be
effective only in that instance and shall not be construed as a bar or
waiver of any right on any other occasion.
9. VALIDITY - If any provision of this letter agreement shall be held
unenforceable or illegal, the validity of the remaining portions or
provisions hereof shall not be affected thereby and such provision shall
be changed and interpreted so as to effectuate the intent of the parties.
10. NATURE OF AGREEMENT - You understand and agree that this letter agreement
is a severance agreement and does not constitute an admission of liability
or wrongdoing on the part of Concord.
11. ACKNOWLEDGMENTS - You acknowledge that you have been given at least twenty
one (21) days to consider this letter agreement and that Concord advised
you to consult with an attorney of your own choosing prior to signing this
letter agreement. You understand that you may revoke this letter agreement
by giving written notice received by the VP, Human Resources, for a period
of seven (7) days after you sign this letter agreement, and the letter
agreement shall not be effective or enforceable until the expiration of
this seven (7) day revocation period.
12. VOLUNTARY ASSENT - You affirm that no other promises or agreements of any
kind have been made to or with you by any person or entity whatsoever to
cause you to sign this letter agreement, and that you fully understand the
meaning and intent of this letter agreement. You state and represent that
you have had an opportunity to fully discuss and
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review the terms of this letter agreement with an attorney. You further
state and represent that you have carefully read this letter agreement and
understand the contents herein, freely and voluntarily assent to all of
the terms and conditions hereof, and sign your name of your own free act.
13. APPLICABLE LAW - This letter agreement shall be interpreted and construed
by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions. You hereby irrevocably submit to and
acknowledge and recognize the jurisdiction of the courts of the
Commonwealth of Massachusetts, or if appropriate, a federal court located
in Massachusetts (which courts, for purposes of this agreement, are the
only courts of competent jurisdiction), over any suit, action or other
proceeding arising out of, under or in connection with this letter
agreement or the subject matter hereof.
14. ENTIRE AGREEMENT - This letter agreement contains and constitutes the
entire understanding and agreement between the parties hereto with respect
to your severance benefits and the settlement of claims against Concord
and cancels all previous oral and written negotiations, agreements,
commitments, writings in connection therewith.
Sincerely,
By: /s/ Melissa Cruz
-----------------------------------
Melissa Cruz
Executive Vice President, Business Services
and Chief Financial Officer
I HEREBY AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS LETTER AGREEMENT. I
HAVE BEEN GIVEN AT LEAST TWENTY ONE (21) DAYS TO CONSIDER THIS LETTER AGREEMENT
AND I HAVE CHOSEN TO EXECUTE THIS ON THE DATE BELOW. I INTEND THAT THIS LETTER
AGREEMENT WILL BECOME A BINDING AGREEMENT BETWEEN ME AND CONCORD IF I DO NOT
REVOKE MY ACCEPTANCE IN SEVEN (7) DAYS FROM THE DATE BELOW.
/s/Kevin Conklin Date 9/19/02
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Kevin Conklin
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