EXHIBIT 10.32
CONCORD COMMUNICATIONS, INC.
MANAGEMENT AGREEMENT BETWEEN THE COMPANY AND XXXX XXXXXXXX
May 6, 2002
Mr. Xxxx Xxxxxxxx
000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Dear Xxxx:
The purpose of this letter agreement is to memorialize the terms and conditions
under which your employment with Concord Communications, Inc. ("Concord") will
terminate. In consideration for Concord agreeing to these terms and conditions,
you agree to execute this letter agreement on or before May 28, 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, 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 will become a legally binding agreement between you
and the Company upon the expiration of the seven (7) day revocation period.
If you choose not to sign this letter by May 28, 2002 or revoke this letter
agreement as described above, your employment will terminate on May 28, 2002 and
you will not receive any benefits from the Company after that date. You will,
however, receive payment on that date 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. ss. 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 the Company for details regarding these benefits. If you choose not
to sign this letter agreement, or revoke this letter agreement in the next seven
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:
1. TERMINATION DATE - Your effective date of termination from the Company
is November 6, 2002 (the "Termination Date"). From the date of this
letter agreement until the termination date, you will be employed by
Concord under the position title of Consultant. Effective on the date
of this letter, you will no longer be an officer of Concord. Your stock
options will continue to vest until the Termination Date. You agree
that you will take no action that will cause Concord, any of its
subsidiaries or officers or directors to be legally bound. In addition,
you will make yourself available should Concord deem your testimony
necessary or advisable in connection with any pending or threatened
litigation.
2. DESCRIPTION OF SEVERANCE BENEFITS - The severance benefits paid to you
if you timely sign and return this letter are described in Attachment A
to this letter agreement.
3. RELEASE - In consideration for Concord agreeing to the terms of this
letter agreement (and providing the benefits contained in Attachment
A), which includes payment of benefits which you acknowledge you would
not otherwise be entitled to receive, you hereby fully, forever,
irrevocably and unconditionally releases, remises and discharges the
Company, 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,
executions,
38
obligations, liabilities, and expenses (including attorneys' fees and
costs), of every kind and nature which you ever had or now have
against the Company, its officers, directors, stockholders, corporate
affiliates, subsidiaries and parent companies, agents and employees
arising out of your employment with or separation from the Company
including, but not limited to, all employment discrimination claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.ss.2000e ET
SEQ., the Age Discrimination in Employment Act, 29 U.S.C.,ss.621 ET
SEQ., the Americans With Disabilities Act of 1990, 42 U.S.C.,ss.12101
ET SEQ., and the Massachusetts Fair Employment Practices Act, M.G.L.
c.151B,ss.1 ET SEQ., all as amended, and all claims arising out of the
Fair Credit Reporting Act, 15 U.S.C.ss.1681 ET SEQ., the Employee
Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.ss.1001 ET
SEQ., the Massachusetts Civil Rights Act, M.G.L. c.12ss.ss.11H and
11I, the Massachusetts Equal Rights Act, M.G.L. c.93ss.102 and M.G.L.
c.214,ss.1C, the Massachusetts Labor and Industries Act, M.G.L. c.
149,ss.1 ET SEQ., and the Massachusetts Privacy Act, M.G.L.
c.214,ss.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 the Company (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 acknowledge your obligation to
keep confidential all non-public information concerning the Company
which you acquired during the course of your employment with the
Company, as stated more fully in the non-disclosure agreement you
executed at the inception of your employment which remains in full
force and effect. You further acknowledge and reaffirm your obligations
under the non-competition agreement you previously executed for the
benefit of the Company at the inception of your employment which also
remains in full force and effect (see attached).
5. RETURN OF COMPANY PROPERTY - You confirm that you have returned to the
Company all keys, files, records (and copies thereof), equipment and
other Company-owned property in your possession (see attachment A). You
further agree to leave intact all electronic Company 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 the Company regarding the
Company or any of its directors, officers, employees, agents or
representatives or about the Company'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 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 or waiver of any right on any other occasion.
9. VALIDITY - 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.
10. CONFIDENTIALITY - To the extent permitted by law, you understand and
agree that as a condition for payment to you of the severance benefits
herein described, the terms and contents of this letter agreement, and
the contents of the negotiations and discussions resulting in this
letter agreement, shall be maintained as confidential by you and your
agents and representatives and shall not be disclosed to any third
party except to the extent required by federal or state law or as
otherwise agreed to in writing by the Company.
11. 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 the Company.
39
12. ACKNOWLEDGMENTS - You acknowledge that you have been given at least
twenty one (21) days to consider this letter agreement, including
Attachment A, and that the Company 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.
13. 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 review the terms of this letter agreement, including Attachment A,
with an attorney. You further state and represent that you have
carefully read this letter agreement, including Attachment A,
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.
14. APPLICABLE LAW - This 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.
15. ENTIRE AGREEMENT - This letter agreement, including Attachment A,
contains and constitutes the entire understanding and agreement between
the parties hereto with respect to your severance benefits and the
settlement of claims against the Company and cancels all previous oral
and written negotiations, agreements, commitments, writings in
connection therewith.
If you have any questions about the matters covered in this letter, please call
Xxxxxxx Xxxx.
Sincerely,
By: /s/ Xxxxxxx Xxxx
------------------------------------
Xxxxxxx Xxxx
Executive Vice President and CFO
I hereby agree to the terms and conditions set forth above and in Attachment A.
I have been given at least twenty one (21) days to consider this letter
agreement (including Attachment A) 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 the Company if I do not revoke my acceptance in seven (7) days.
/s/ Xxxx X. Xxxxxxxx Date 5/6/02
----------------------------- --------------------------------------
40
ATTACHMENT A
Termination of employment with Concord Communications, Inc. (the
"Company") will be effective November 6, 2002. Your final paycheck will be paid
on November 15, 2002. Concord will pay you for the period from May 6, 2002 to
November 6, 2002 at an annualized base salary rate of $190,000, provided however
that this base salary rate will increase to $210,000 (annualized) on July 1,
2002. In addition, Concord Communications, Inc. will pay your severance as
described in the paragraph entitled "Severance" below, payable with the normal
payroll cycle. You will receive commissions at your normal commission rate for
the period up to May 6, 2002. You will receive no commissions or payment of any
kind after May 6, 2002 except as expressly described in the letter agreement or
this attachment.
SEVERANCE. Effective on the Termination Date (November 6, 2002), Concord will
pay to you your regular base salary (annualized at $210,000) until such time as
you have accepted employment; provided that such amounts will in no event be
less than one month's base salary, nor more than six (6) months' base salary.
You agree to notify Concord immediately upon acceptance of employment. All
amounts will be payable on the normal payroll cycle. Please note that, in order
to receive the severance, the attached Release must be signed. 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 the
letter agreement and the release included in that document, you will receive the
medical, dental and other benefits normally provided to Concord employees from
the date of this letter until the termination of your payments from Concord.
Please be advised that all property of the Company must be returned to Concord
immediately including, without limitation, all computer equipment, computer
accessories, client database, demonstration software, business cards, software
programs, keys, credit cards, customer lists, price lists, promotional
materials, files, reports, data memoranda, sales brochures, telephone charge
cards, manuals, diskettes, business or marketing plans, and reports, which you
are holding or using or which are under your control. Please contact Xxx Xxxxxxx
at 000-000-0000 to make arrangements to return all materials and equipment.
Please submit any outstanding expense reports for approval by May 31,2002. All
expense reports will be processed immediately and reimbursement checks, if
required, will be mailed directly to your residence. If expense reports are not
submitted by that time, they may not be approved and processed timely.
Contingent upon signing the attached release, your medical insurances (if
applicable) will continue through the severance period. You will receive
separate notification of your eligibility for COBRA insurance continuation.
Please contact Xxx Xxxxxxxx no later than 60 days from the termination date
regarding your stock options, if applicable. Please contact Xxxx Xxxxx no later
than 60 days from your termination date regarding your 401(k) plan, if
applicable.
In addition, please be informed that your obligations under the Employee
Confidentiality Agreement, which you signed on your first date of employment,
shall survive the termination of your employment regardless of the manner of
such termination and shall be binding upon your heirs, assigns, personal
representatives, executors, and administrators.
41
