EXHIBIT
10.33








SEPARATION AGREEMENT AND
GENERAL RELEASE


COMPANY
CONFIDENTIAL








This
Separation Agreement and General Release (“Agreement”) is made and entered into
on this 17th day of December, 2009 by and between Comverge, Inc., a Delaware
corporation (hereinafter referred to as “the Company”), and Frank Magnotti
(hereinafter referred to as “Employee”).  Employee and Company are
individually referred to as “Party” and collectively as “Parties.”





W
I T N E S S E T H


WHEREAS, Employee has been
employed by the Company in the position of EVP of Sales and Marketing and Chief
Marketing Officer pursuant to an Executive Employment Agreement (“Employment
Agreement”) dated September 30, 2009; and




WHEREAS, the Company and
Employee have decided to end the Employment Agreement and Employee’s employment
will end with the Company effective on December 17, 2009, subject to the terms
of this Agreement; and





WHEREAS, the Parties have
decided to settle all rights, claims, and demands which either party has against
or may have against the other arising from termination of the Employment
Agreement, the Retention Bonus Letter of July 16, 2009, Employee’s employment or
termination of his employment with the Company and/or any other participation by
Employee in any benefits or programs provided by the Company; and





WHEREAS, the
Company and Employee desire to set forth their respective rights, duties and
obligations and desire complete accord and satisfaction of all claims arising
therefrom;






1





NOW THEREFORE,for and in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Employee hereby agree as follows:




1.           Company’s
Agreements.




(a)  The
Employment Agreement will terminate and Employee’s employment with the Company
will end on December 17, 2009 (“End Date”), with the understanding that Employee
will assist the Company, as requested through the Consulting Agreement, for the
period ending March 31, 2010.  Upon execution, the Consulting
Agreement shall control the relationship between the Parties except to the
extent that Employee has continuing obligations under the Employment Agreement
or the Company has continuing obligations pursuant to this
Agreement.  Upon Employee’s execution and non-revocation of this
Agreement, and beginning after the End Date, Employee shall be entitled to the
benefits set forth in Section 7.5(b) of the Employment Agreement, which is
incorporated herein by reference.  Employee’s entitlement to the
benefits or payments from the Company, except as expressly stated herein, is
subject to Employee’s acceptance of this Agreement and his compliance with the
conditions set forth herein and with the obligations contained in the Employment
Agreement and Consulting Agreement.  At all times preceding and
including his termination date, Employee shall be responsible for cooperating
with the Company and its officers, employees, agents and
representatives.  Employee agrees to exercise his best efforts to
perform all job duties and responsibilities, and any task to which he is
assigned to perform, in a competent and satisfactory manner, to comply with all
policies, procedures and work directives, and to assist and facilitate in the
transition of his job responsibilities and functions.  Upon
termination of his employment, the Company agrees to pay Employee the severance
pay as set forth in Section 7.5(b) of the Employment Agreement pursuant to Schedule A, less any
withholdings that are required under federal and state law and any required
benefit payments pursuant to Section 7.5(d).  Company shall also pay
Employee a lump sum amount of $125,000 pursuant to Schedule A pursuant
to the Retention Bonus Letter.  Any other payments shall be controlled
by the Consulting Agreement.  Employee shall be entitled to no other
payments under this Agreement or the Employment Agreement. Whether or not
Employee signs this Agreement, the Company will pay to Employee an amount
constituting Employee’s accrued, unused vacation days.  Employee’s
Group Medical and Dental benefits may be continued for up to eighteen (18)
months at Employee’s expense by completion and submittal of the form provided by
COBRA Administration Services.  Pursuant to Section 7.5(d), the
Company will continue to provide benefits assuming Employee continues to pay his
required payment amounts.






2





2.           Employee’s
Agreements.




(a)           As
a material inducement to the Company to enter into this Agreement, Employee
hereby irrevocably and forever releases the Company and its parent and/or
related companies, subsidiaries, or affiliates, and their past, present and
future officers, directors, employees, agents and attorneys (collectively
“Releasees”) from any and all charges, claims, complaints, demands, liabilities,
rights, obligations, promises, causes of action, costs, damages at law, expenses
(including attorneys’ fees and costs actually incurred), and suits hidden, of
any nature whatsoever, known or unknown, which Employee ever had, may have, or
now has arising from or related to, directly or indirectly, Employee’s
Employment Agreement, the Retention Bonus Letter, or any other agreement, his
employment by the Company or any other events which have occurred as of the date
of this Agreement, including but not limited to any claims arising under Title
VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991,
the Americans with Disabilities Act, the Family Medical Leave Act, the Age
Discrimination in Employment Act and any and all other federal and state laws or
statutes.  Notwithstanding the foregoing, Employee does not release
any claims under this Agreement or under the Age Discrimination in Employment
Act that may arise after the execution of this Agreement.




(b)           Employee
agrees not to commence any legal proceeding or lawsuit against the Company or
any Company Affiliate arising out of or based upon Employee’s employment with
the Company or the end of Employee’s employment with the Company; provided,
however, this provision does not apply to any claims or causes of action not
released pursuant to Section 2(a) above, including without limitation any claims
or causes of action accruing and based upon conduct occurring after the
Effective Date of this Agreement, including, without limitation, any claims or
causes with respect to Executive’s rights to payments or benefits under this
Agreement.




(c)  Employee represents and
agrees that he will keep the terms, the amount, and the fact of this Agreement
completely confidential and he will not hereafter disclose such information to
anyone except as he may be required to do so by law.  Employee further
agrees that he (i) will notspeak or
communicate with the media, investors, analysts, customers, Company employees,
Company officers or any other third party about the Company or on behalf of the
Company, or any of its officers, parent, subsidiary, affiliate, or related
companies or their agents, employees or representatives unless specifically
directed by the CEO and  (ii) shall not engage in any conduct which is
designed to disparage or has the effect of disparaging the Company or any of its
officers, parent, subsidiary, affiliate, or related companies or their agents,
employees or representatives.  Company agrees to not engage in any
conduct which is designed to disparage or has the effect of disparaging the
Employee.




(d)           In
the event that the Company becomes involved in any civil or criminal litigation,
administrative proceeding or governmental investigation, Employee shall, upon
request during the twelve-month period following the date of Date, provide
reasonable cooperation and assistance to the Company, including without
limitation, furnishing relevant information that he remembers or is in his
possession, attending meetings and providing statements and
testimony.  The Company will reimburse Employee for all reasonable and
necessary costs and expenses Executive incurs in complying with this
Section.






3




(e)  Employee
represents and warrants that he has been encouraged to seek advice from anyone
of his choosing, including his attorney, accountant or tax advisor prior to his
signing it; that this Agreement represents written notice that he do so; that he
has been given the opportunity and sufficient time to seek such advice; that he
has carefully read and fully understands all of the provisions of this
Agreement; and that he is voluntarily entering into this
Agreement.  Employee
understands that he may take up to twenty-one (21) days to consider whether or
not he desires to enter into this Agreement.  Employee further
represents and warrants that he was not coerced, threatened or otherwise forced
to sign this Agreement, and that his signature appearing hereinafter is
genuine.




(f)           Employee
represents and acknowledges that, in executing this Agreement, he does not rely
and has not relied upon any representation or statement made by any of the
Releasees or by any of the Releasees’ agents, representatives, or attorneys with
regard to the subject matter, basis, or effect of this Agreement.




(g)           For
a period of one year from the date hereof, unless specifically invited in
writing by the Company, neither you nor any of your representatives acting on
your behalf or on behalf of other persons acting in concert with you will in any
manner, directly or indirectly effect or seek, offer or propose (whether
publicly or otherwise) to effect, or announce any intention to effect or cause
or participate in or in any way assist, facilitate or encourage any other person
to effect or seek, offer or propose (whether publicly or otherwise) to effect or
participate in any “proxy” “solicitation” (as such terms are used in the proxy
rules of the Securities and Exchange Commission) or consents to vote any voting
securities of the Company, or make any communication exempted from the
definition of “solicitation” by Rule 14a-1(1)(2)(iv) under the Exchange
Act.




(h)  Employee hereby
acknowledges, that during his employment, he agreed to certain post-termination
obligations restrictive covenants which are contained in the Employment
Agreement at Sections 3, 4, 5, and 6 and which are incorporated herein by
reference.  Employee further acknowledges and agrees that Sections 3,
4, 5, and 6 are reasonable restrictions to protect the Company’s legitimate
interest, that his severance pay as provided by Section 7(b) of the Employment
Agreement constitutes consideration for the restrictions contained in Sections
3, 4, 5 and 6 and that Sections 3, 4, 5 and 6 shall remain in full force and
effect after the termination of the Employment Agreement and Employee’s
employment with the Company.  Employee agrees that he will comply with
his obligations as set forth in Sections 3, 4, 5, and 6.  In the event
Employee does not comply with his obligations set forth in Sections 3, 4, 5 and
6 of the Employment Agreement, the Company shall have the right to cease any and
all further payments to Employee as provided herein and Employee shall have the
obligation to repay to the Company any benefits provided herein within thirty
(30) days of Employee’s non-compliance.  To the extent the Company is
required to enforce its rights under this Agreement in any judicial proceeding,
Employee shall indemnify the Company for any and all costs, including attorneys’
fees, related to such enforcement.






4





3.           Other Agreements.


(a)           Employee
understands and acknowledges that he has seven (7) days after his acceptance and
execution of this Agreement to revoke this Agreement.  Should Employee
choose to revoke his acceptance and execution of this Agreement within that
seven (7) day period, he must submit such revocation in writing to Matthew H.
Smith, General Counsel of the Company prior to the expiration of the seven (7)
day period.  After such seven (7) day period, this Agreement will be
irrevocable.




(b)           This
Agreement terminates the Employment Agreement except for those provisions that
survive termination as referenced herein.  This Agreement supersedes
and terminates any prior agreements, whether written or otherwise, between
Employee and the Company or any predecessor of the Company.  To the
extent this Agreement conflicts with the Consulting Agreement, this Agreement
shall control.




(c)           Employee
warrants that he has delivered to the Company all property belonging to the
Company.




(d)           The
Company and Employee agree that the failure of the Company to insist upon any
one or more instances relating to the performance of any of the terms,
covenants, or conditions of this Agreement shall not be construed as a waiver or
relinquishment of any right granted hereunder or of the future performance of
any such term, covenant, or condition.




(e)           The
Company and Employee agree that this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, heirs,
executors, administrators, and representatives.  Neither this
Agreement nor any right hereunder may be assigned by Employee.




(f)           The
Company and Employee agree that this Agreement sets forth the full and complete
understanding of the parties with respect to the matters addressed herein and
that the validity of this Agreement and any of the provision hereof shall be
interpreted, construed, and determined under and according to the laws of the
State of New Jersey.






5




4.           Employee
Statement.


I have read and understand this entire
Agreement.  I understand that I have twenty-one (21) days to consider
whether or not I desire to enter into this Agreement.  I understand
that I have seven (7) days to revoke this Agreement even after I provide a
signed copy to the Company.  After the expiration of such seven (7)
day period, this Agreement will be binding upon me and will be
irrevocable.


I understand that by signing this
Agreement, I am giving up rights I may have.  I understand I do not
have to sign this Agreement.





/s/ Frank A.
Magnotti


Frank
Magnotti





Date:           12/31/2009





COMVERGE,
INC.


By:           /s/ Matthew H.
Smith


Date:                   12/31/2009









6





SCHEDULE
A





1.
            Employment
      Agreement


a.
            Section
      7.5(a)


i.
            $1922.56(unpaid,
      earned salary)


ii.
            $10,141.63
      (unpaid, earned vacation)


iii.
            Documented
      expenses submitted by 1/31/2010 shall be paid pursuant to the Company’s
      travel expense policy.





b.
            Section
      7.5(b)


i.
            $187,500
      (9 months annual base salary of
$250,000)


ii.
            $45,374
      (Last completed year bonus payment- $47,050
      x  352/365)




*Where
these payments will be made pursuant to the following schedule, with the taxes
also deducted each period and with benefits payments due to the
Company:





Period
      Begin
                *Payday
                
                9
      Month
                
                
                Bonus
                
                
                Total
      before taxes12/21/2009
                **12/31/2009
                
                $
                10,409.81
                
                
                $
                2,520.74
                
                
                $
                12,930.551/1/2010
                1/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.851/16/2010
                1/31/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.852/1/2010
                2/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.852/16/2010
                2/28/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.853/1/2010
                3/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.853/16/2010
                3/31/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.854/1/2010
                4/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.854/16/2010
                4/30/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.855/1/2010
                5/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.855/16/2010
                5/31/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.856/1/2010
                6/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.856/16/2010
                6/30/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.857/1/2010
                7/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.857/16/2010
                7/31/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.858/1/2010
                8/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.858/16/2010
                8/31/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.859/1/2010
                9/15/2010
                
                $
                10,417.07
                
                
                $
                2,520.78
                
                
                $
                12,937.85$
                187,500.00
                
                
                $
                45,374.00
                
                
                $
                232,874.00




* Paydays
falling on a holiday or weekend will be paid on the last business day prior to
the event.


**Or upon
the later of the seven (7) day revocation period.





2.
            Retention Letter
      Agreement- $125,000, minus all applicable taxes, paid by wire on
      December 31, 2010.  To the extent Employee revokes this
      Agreement during the revocation period, he shall repay this amount within
      five days of such revocation.





3.
            Consulting
      Payments.  As provided for in the Consulting
      Agreement.