Exhibit 10.1


 


AMENDED AND RESTATED


MANAGEMENT CHANGE IN CONTROL
AGREEMENT


 


THIS AGREEMENT, dated as of April 6, 2005, is by and
between Concord Communications, Inc., a Massachusetts corporation (the
“Company”), and John A. Blaeser (the “Employee”).


 


WHEREAS, it is expected that the Company from time to time will consider the possibility of an acquisition by another company or other Change of Control (as defined below). The Board of Directors of the Company (the “Board”) recognizes that the possibility of a Change in Control can be distracting to the Employee and could cause the Employee to consider alternative employment opportunities. The Board has determined that it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication and objectivity of the Employee, notwithstanding the possibility, threat or occurrence of a Change of Control of the Company;
 
WHEREAS,  the Board believes that it is in the best interests of the Company and its stockholders to provide the Employee with an incentive to continue his or her employment with the Company, or a wholly-owned subsidiary of the Company, as the case may be, and to motivate the Employee to maximize the value of the Company for the benefit of its stockholders;
 
WHEREAS, the Board believes that it is imperative to provide the Employee with certain benefits upon a Change of Control, thereby encouraging the Employee to remain with the Company notwithstanding the possibility of a Change of Control; and
 
WHEREAS, the Employee and the Corporation are parties to a Management Change in Control Agreement dated August 7, 1997 (the “Prior Agreement”) and desire to amend and restate the entire Prior Agreement.
 
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Employee hereby agree to amend and restate the Prior Agreement as follows:
 


Section 1


DEFINITIONS


 


Except as may otherwise be specified or as the
context may otherwise require, the following terms shall have the respective
meanings set forth below whenever used herein:


 


“Annual Bonus” shall mean 75% of the Employee’s
target annual bonus established for the fiscal year in which a Change in
Control occurs.


 


“Base Salary” shall mean the annual base rate of
regular compensation of the Employee immediately before a Change in Control, or
if greater, the highest annual such rate at any time during the 12-month period
immediately preceding the Change in Control.


 





















 


“Board” shall mean the Board of Directors of the
Company.


 


“Change in Control” shall mean the first to occur,
after the date hereof, of any of the following:


 


(i)
the members of the Board at the beginning of any consecutive twenty-four (24)
calendar-month period (the “Incumbent Directors”) cease for any reason (other
than due to death) to constitute at least a majority of the members of the
Board; provided that any director whose election, or nomination for election by
the Company’s stockholders, was approved by a vote of at least a majority of
the members of the Board then still in office who were members of the Board at
the beginning of such twenty-four (24) calendar-month period, shall be deemed
to be an Incumbent Director;


 


(ii)
any consolidation or merger of the Company where the stockholders of the
Company, immediately prior to the consolidation or merger, would not,
immediately after the consolidation or merger, beneficially own (as such term
is defined in Rule 13d-3 under the Securities Exchange Act), directly or
indirectly, shares of Stock representing in the aggregate 50% or more of the
combined voting power of the securities of the corporation issuing cash or
securities in the consolidation or merger (or of its ultimate parent
corporation, if any);


 


(iii)
there shall occur (A) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any party
as a single plan) of all or substantially all of the assets of the Company,
other than a sale or disposition by the Company of all or substantially all of
the Company’s assets to an entity, at least 50% of the combined voting power of
the voting securities of which are owned by Persons in substantially the same
proportion as their ownership of the Company immediately prior to such sale or
(B) the approval by stockholders of the Company of any plan or proposal for the
liquidation or dissolution of the Company; or


 


(iv)
Any corporation or other legal person, pursuant to a tender offer, exchange
offer, purchase of stock (whether in a market transaction or otherwise) or
other transaction or event acquires securities representing 40% or more of the combined voting power of
the voting securities of the Company, or there is a report filed on Schedule
13D or Schedule TO (or any successor schedule, form or report), each as
promulgated pursuant to the Securities Exchange Act, disclosing that any
“person” (as such term is used in Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act) has become the “beneficial owner” (as such term is
used in Rule 13d-3 under the Securities Exchange Act) of securities
representing 40% or more of the combined voting power of the voting securities
of the Company.


 


Upon
the occurrence of a Change in Control as provided above, no subsequent event or
condition shall constitute a Change in Control for purposes of this Agreement,
with the result that there can be no more than one Change in Control hereunder.


 


“Code” shall mean the Internal Revenue Code of 1986,
as amended.


 


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“Company” shall mean, subject to Section 4.1(a),
Concord Communications, Inc., a Massachusetts corporation and each Subsidiary
which may now or hereafter employ the Employee or, where the context so
requires, the Company and such Subsidiaries collectively.


 


“Person” shall have the meaning ascribed thereto by
Section 3(a)(9) of the Securities Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof (except that such term shall not include (i)
the Company or any of its Subsidiaries, (ii) a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or any of its
Subsidiaries, (iii) an underwriter temporarily holding securities pursuant to
an offering of such securities, (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in substantially the same
proportion as their ownership of stock of the Company, or (v) such Employee or
any “group” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act) which includes the Employee).


 


“Securities Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended.


 


“Stock” shall mean the common stock, $.01 par value
per share, of the Company.


 


“Subsidiary” shall mean any entity, directly or indirectly,
through one or more intermediaries, controlled by the Company.


 


Section 2


BENEFITS


 


2.1                                                If a Change in Control occurs, then:


 


(a)                 any
and all outstanding unvested stock options and stock appreciation rights held
by the Employee shall immediately automatically vest and become immediately
exercisable in accordance with their terms; provided that nothing in this
Section 2.1(a) shall reduce or otherwise adversely affect the rights under such
stock options and stock appreciation rights that the Employee would have
without regard to this Section 2.1(a); and


 


(b)                any
and all restricted stock and restricted stock rights then held by the Employee
shall immediately automatically fully vest and become immediately transferable
free of restrictions, other than restrictions imposed by applicable law.


 


2.2                                              If a Change in Control occurs, then (subject
to the provisions of Section 2.3(b)) the Employee shall be entitled hereunder
to the following:


 


(a)                 the
Company shall pay to the Employee an amount in cash equal to two times (2
times) the sum of (i) Employee’s Base Salary and (ii) Employee’s Annual
Bonus, such amount to be payable in a single lump sum payment in accordance
with Section 2.3;


 


(b)                for
a period of two (2) years after such Change in Control, the Company shall make
available to the Employee medical, dental, group life and disability insurance
benefits that


 


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are
at least at a level (and cost to the Employee) that is substantially similar in
the aggregate to the level of such benefits which was available to the Employee
immediately prior to the Change in Control; provided that no type of benefit
otherwise to be made available to the Employee pursuant to this Section 2.2(b)
shall be required to be made available to the extent that such type of benefit
is made available to the Employee by any subsequent employer of the Employee;
and


 


(c)               the
Company shall pay the Employee for any accrued but unused vacation, any accrued
but unpaid Base Salary, and an amount equal to the product of the Employee’s
unpaid targeted annual bonus established for the fiscal year in which the
Change in Control occurs, multiplied by a fraction the numerator of which is
the number of days elapsed in the fiscal year in which the Change in Control
occurs, and the denominator of which is 365.


 


2.3                 (a) The payments provided for in Section 2.2
shall (except as otherwise expressly provided therein or as provided in Section
2.3(b) or as otherwise expressly provided hereunder) be made as soon as
practicable, but in no event later than thirty (30) days, following the Change
in Control.


 


(b) Notwithstanding any other provision of this
Agreement to the contrary, no payment or benefit otherwise provided for under
or by virtue of the foregoing provisions of this Agreement shall be paid or
otherwise made available unless and until the Company shall have first received
from the Employee (no later than twenty (20) days after the Company has
provided to the Employee estimates relating to the payments to be made under
this Agreement) a valid, binding and irrevocable general release, in form and
substance reasonably acceptable to the Company; provided that the Company shall
be permitted to defer any payment or benefit otherwise provided for in this
Agreement to the fifth day after the later of its receipt of such release and
the time at which the release has become valid, binding and irrevocable.


 


Section 3


PARACHUTE TAX PROVISIONS


 


3.1                                                Notwithstanding
anything to the contrary in this Agreement, if the Employee is a Disqualified
Individual (as defined in Section 280G of the Code) and if any portion of any
acceleration of vesting, payment or transfer of property under this Agreement
would be an Excess Parachute Payment (as defined in Section 280G of the Code) but
for the application of this sentence, then the amount of such acceleration,
payment or transfer otherwise payable to the Employee pursuant to this
Agreement shall be reduced to the minimum extent necessary (but in no event to
less than zero) so that no portion of such payment, as so reduced, constitutes
an Excess Parachute Payment; provided, however, that no reduction shall be made
if the net economic effect would be disadvantageous to the Employee, taking
into account all the facts and circumstances, including any tax savings
resulting from the reduction.


 


3.2                                                Except as may otherwise be agreed to by the
Company and the Employee, the amount or amounts (if any) to be reduced under
this Section 3 shall be determined, at the sole cost of the Company, by the Company’s
independent auditors (who served in such capacity immediately prior to the
Change in Control), whose determination or determinations shall be final and
binding on all parties. The Employee hereby agrees to utilize such
determination or


 


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determinations,
as applicable, in filing all of the Employee’s tax returns with respect to the
payments received hereunder. If such independent auditors refuse to make the
required determinations, then such determinations shall be made by a comparable
independent accounting firm of national reputation reasonably selected by the
Company.


 


Section 4


MISCELLANEOUS


 


4.1 (a) The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise)
to all or substantially all of the business or assets of the Company expressly
to assume and agree to perform under the terms of this Agreement in the same
manner and to the same extent that the Company and its affiliates would be required
to perform it if no such succession had taken place (provided that such a
requirement to perform which arises by operation of law shall be deemed to
satisfy the requirements for such an express assumption and agreement), and in
such event the Company (as constituted prior to such succession) shall have no
further obligation under or with respect to this Agreement. Failure of the
Company to obtain such assumption and agreement with respect to the Employee
prior to the effectiveness of any such succession shall be a breach of the
terms of this Agreement with respect to the Employee and shall entitle the
Employee to compensation from the Company (as constituted prior to such
succession) immediately prior to the Change in Control in the same amount and
on the same terms as the Employee would be entitled to hereunder upon the
Change in Control.  As used in this
Agreement, “Company” shall mean the Company as hereinbefore defined and any
successor to its business or assets as aforesaid which assumes and agrees (or
is otherwise required) to perform this Agreement. Nothing in this Section
4.1(a) shall be deemed to cause any event or condition which would otherwise
constitute a Change in Control not to constitute a Change in Control.


 


(b) This Agreement, and the Employee’s and the
Company’s rights and obligations hereunder, may not be assigned by the Employee
or, except as provided in Section 4.1(a), the Company, respectively; any
purported assignment by the Employee or the Company in violation hereof shall
be null and void.


 


(c) The terms of this Agreement shall inure to the
benefit of and be enforceable by the personal or legal representatives,
executors, administrators, permitted successors, heirs, distributees, devisees
and legatees of the Employee. If the Employee shall die while an amount would
still be payable to the Employee hereunder, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the Employee’s devisee, legatee or other designee or, if there is no such
designee, the Employee’s estate.


 


4.2                                                The Employee shall not be required to
mitigate damages or the amount of any payment or benefit provided for under
this Agreement by seeking other employment or otherwise, nor, except as
expressly provided in Section 2.2(b), will any payments or benefits hereunder
be subject to offset in the event the Employee does mitigate.


 


4.3                                                The Company shall pay all reasonable legal
fees and expenses incurred in a legal proceeding by the Employee in seeking to
obtain or enforce any right or benefit provided by this


 


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Agreement.
Such payments are to be made within twenty (20) days after the Employee’s
request for payment accompanied by such evidence of fees and expenses incurred
as the Company reasonably may request; provided that if the Employee institutes
a proceeding and the judge or other decision-maker presiding over the
proceeding affirmatively finds that the Employee has failed to prevail
substantially in such proceeding, the Employee shall pay Employee’s own costs
and expenses (and, if applicable, return any amounts theretofore paid on the
Employee’s behalf under this Section 4.3).


 


4.4                                                For the purposes of this Agreement, notice
and all other communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given when hand delivered or mailed by
United States certified or registered express mail, return receipt requested,
postage prepaid, if to the Employee, addressed to the Employee at his or her
address set forth on the signature page hereto and if to the Company, addressed
as follows:


 


Concord
Communications, Inc.


600
Nickerson Road


Marlboro,
MA  01752


Attn:
Executive Vice President and General Counsel


 


with
a copy to:


 


Kevin
M. Barry, Esq.


Bingham
McCutchen LLP


150
Federal Street


Boston,
MA  02110-1726


 


4.5                                                Unless otherwise determined by the Company in
an applicable plan or arrangement, no amounts payable hereunder upon a Change
in Control shall be deemed salary or compensation for the purpose of computing
benefits under any employee benefit plan or other arrangement of the Company
for the benefit of its employees.


 


4.6                                                This Agreement is the exclusive arrangement
with the Employee applicable to payments and benefits in connection with a
change in control of the Company (whether or not a Change in Control), and
supersedes any prior arrangements involving the Company or its predecessors or
affiliates relating to changes in control (whether or not Changes in Control),
including, but not limited to, the Prior Agreement, which is terminated as of
the date hereof. This Agreement shall not limit any right of the Employee to
receive any payments or benefits under an employee benefit or compensation plan
of the Company, initially adopted as of or after the date hereof, which is
expressly contingent thereunder upon the occurrence of a change in control
(including, but not limited to, the acceleration of any rights or benefits
thereunder); provided that in no event shall the Employee be entitled to any
payment or benefit under this Agreement which duplicates a payment or benefit
received or receivable by the Employee under any severance or similar plan or
policy of the Company, and in any such case the Employee shall only be entitled
to receive the greater of the two payments.  
The Employee’s Employee Noncompetition Agreement with the Company, as
well as any and all option agreements, restricted stock


 


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agreements
and any other agreements with the Company relating to equity compensation
arrangements shall remain in full force and effect, as may be modified hereby.


 


4.7                                                Nothing in this Agreement shall confer on the
Employee any right to continue in the employ of the Company or interfere in any
way (other than by virtue of requiring payments or benefits as may expressly be
provided herein) with the right of the Company to terminate the Employee’s
employment at any time.  Employee
understands that the employment relationship between the Employee and the
Company is an “at will” relationship and that the Company may terminate such
relationship with or without cause or for any reason or no reason, subject to
the Employee’s rights and the Company’s obligations hereunder.


 


4.8                                                The Company shall be entitled to withhold
from any payments or deemed payments any amount of tax withholding required by
law.


 


4.9                                                Any controversy or claim arising out of or
relating to this Agreement or the breach of this Agreement that is not resolved
by the Company and the Employee shall be submitted to arbitration in Boston,
Massachusetts, in accordance with Massachusetts law and the procedures of the
American Arbitration Association. The determination of the arbitrator(s) shall
be conclusive and binding on the Company and Employee and judgment may be
entered on the arbitrator(s)’ award in any court having jurisdiction.


 


4.10                                          This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which taken
together will constitute one and the same instrument.


 


4.11                                          This Agreement may be amended, superseded,
canceled, renewed or extended, and the terms hereof may be waived, only by a
written instrument signed by the parties or, in the case of a waiver, by the
party waiving compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege
nor any single or partial exercise of any such right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other
such right, power or privilege.


 


4.12                                          Each provision herein shall be treated as a
separate and independent clause, and the invalidity or unenforceability of any
one provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement which shall remain in full force and
effect.  Moreover, if one or more
provisions shall be held to be excessively broad as to scope, activity, subject
or otherwise so as to be unenforceable at law, such provision or provisions
shall be construed by the appropriate judicial body by limiting or reducing it
or them, so as to be enforceable to the maximum extent compatible with the
applicable law as it shall then be in effect.


 


4.13                                          The
use of captions in this Agreement is for convenience. The captions are not
intended to and do not provide substantive rights.


 


4.14                                          This Agreement shall be construed,
administered and enforced according to the laws of the Commonwealth of
Massachusetts without regard to principles of conflicts of law,


 


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except
to the extent preempted by federal law. 
Any claims or legal actions by one party against the other arising out
of the relationship between the parties contemplated herein (whether or not
arising under this Agreement) shall be governed by the laws of the Commonwealth
of Massachusetts and shall be commenced and maintained in any state or federal
court located in Massachusetts, and both parties hereby submit to the
jurisdiction and venue of any such court.


 


4.15                                          This
Agreement shall terminate upon the date that all obligations of the Company and
the Employee with respect to this Agreement have been satisfied.


 


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IN WITNESS WHEREOF, the parties hereto have signed
their names, effective as of the date first above written.


 


 


	
   

  	
  CONCORD COMMUNICATIONS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert Wadsworth

  	
   

  
	
   

  	
   

  	
  Name: Robert Wadsworth

  
	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ John A. Blaeser

  	
   

  
	
   

  	
   

  	
  Name: John A. Blaeser