Separation Agreement and General Release between eXcelon Corporation and Ross Hinchcliffe

 Exhibit 10.54 SEPARATION AGREEMENT AND GENERAL RELEASE This Separation Agreement and General Release ("Agreement") is made and entered into this 17th day of April, 2001 by and between eXcelon Corporation, a Delaware Corporation ("EXLN"); and Ross Hinchcliffe, an individual residing at 12109 Foothill Lane, Los Altos Hills, CA 94022, ("Hinchcliffe"). W I T N E S S E T H T H A T: WHEREAS, EXLN has employed Hinchcliffe most recently as Vice President, Worldwide Sales; and WHEREAS, EXLN and Hinchcliffe wish to set forth the terms of the termination of Hinchcliffe's employment with EXLN; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXLN and Hinchcliffe hereby agree as follows: 1. Hinchcliffe hereby agrees to resign as Vice President, Worldwide Sales and as an executive officer of EXLN, effective as of April 17, 2001 (the "Effective Date of Termination"). At the request of EXLN, Hinchcliffe will execute and deliver to EXLN a separate instrument embodying such resignation. 2. EXLN agrees to pay Hinchcliffe a total amount of $233,333.33 payable in twenty-four (24) installments of $9,722.22 on a semi-monthly basis, less applicable deductions, for a period of twelve (12) months in accordance with EXLN's standard payroll policies, and EXLN shall provide Hinchcliffe with medical and dental insurance coverage under COBRA, at EXLN's expense but less Hinchcliffe's applicable contribution for such insurance, for a period of twelve (12) months from the Effective Date of Termination; provided, however, that if Hinchcliffe becomes re-employed with another employer and is eligible to receive such insurance coverage under another employer-provided plan, EXLN's contributions toward the insurance coverage set forth herein shall terminate immediately and Hinchcliffe shall have the election to continue such coverage, at Hinchcliffe's sole expense. Notwithstanding the foregoing, in the event that Hinchcliffe relocates his domicile outside the United States, the foregoing amount of $233,333.33 shall become payable in sixteen (16) installments of $14,583.33 on a semi-monthly basis, less applicable deductions, for a period of eight (8) months in accordance with EXLN's standard payroll policies. 3. From the Effective Date of Termination until April 17, 2002, and in partial consideration of the payments described in the immediately preceding paragraph, Hinchcliffe shall continue as a consultant of EXLN, on a case-by-case basis, and shall use all reasonable efforts to perform such duties as the Board of Directors of EXLN, or the Chief Executive Officer of EXLN, shall reasonably assign to him. 4. EXLN agrees that Hinchcliffe may retain the personal computer provided to him during his employment with EXLN, provided that Hinchcliffe agrees and acknowledges by his signature below that (i) all Confidential Information and material belonging to EXLN, including without limitation all software, documentation, records, forms, customer lists and data, has been removed and deleted from such computer; (ii) Hinchcliffe has ceased any and all utilization of such Confidential Information and material; and (iii) no copies of such Confidential Information and material have been made. 5. All options which have heretofore been granted to Hinchcliffe under EXLN's 1997 Nonqualified Stock Option Plan,1996 Stock Incentive and Nonqualified Stock Option Plan and/or 1996 Employee Stock Purchase Plan (the "Options") shall be exercisable, and expire, in accordance with their terms in effect as of the date of this Agreement. The Options shall continue to vest until the Effective Date of Termination and no Option or portion thereof shall vest after the Effective Date of Termination. Notwithstanding the foregoing and anything contrary set forth in the terms and conditions of the foregoing plans, and subject to the Board of Directors of EXLN's approval, Hinchcliffe shall have the right to exercise any fully vested Options, as of the Effective Date of Termination, within six (6) months after the Effective Date of Termination.  6. Hinchcliffe specifically acknowledges that the payments made and benefits extended hereunder by EXLN are in lieu of all other benefits and payments which otherwise may have been payable to Hinchcliffe as a result of his separation from EXLN under benefit plans or policies of EXLN, including, without limitation, additional severance, bonus payments and separation pay, and Hinchcliffe hereby waives any rights he may have in or to any such other benefits or payments, it being the intention of the parties hereto to convert and merge all such rights into this Agreement. 7. Hinchcliffe hereby acknowledges and ratifies his obligations under the NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, dated September 30, 1999 between Hinchcliffe and EXLN, which is attached hereto and incorporated herein by reference, and further agrees to be bound by the terms thereof. 8. Hinchcliffe, for good and valuable consideration the receipt of which is hereby acknowledged, for himself and his legal representatives, successors, and assigns hereby releases, remises, and forever discharges EXLN, its subsidiaries and affiliates, and their respective past, present and future agents, officers, directors, shareholders, attorneys, employees, servants, and representatives and all of EXLN's heirs, successors, predecessors, and assigns, of and from all manner of actions, causes of actions, suits, debts, demands, damages, costs, expenses, obligations, agreements, and claims whatsoever, at law, in equity, or otherwise, known or unknown, which Hinchcliffe has or may have, either now or at any time before the date of this Agreement, against EXLN, including but not limited to any claims arising out of or in any way related to Hinchcliffe's employment by EXLN, Hinchcliffe's resignation as Vice President, Worldwide Sales and as an executive officer of EXLN, and/or the termination of Hinchcliffe's employment by EXLN; provided, however, that any claims that Hinchcliffe may make against EXLN for breach of this Agreement are specifically exempted from this release. Hinchcliffe acknowledges and agrees that the payments and benefits to be made to Hinchcliffe pursuant to this Agreement are over and above any other money or benefits that would be due to Hinchcliffe under the terms of his employment with EXLN and EXLN's usual policies and practices. 9. Hinchcliffe and EXLN hereby agree to be publicly supportive of each other. Hinchcliffe agrees not to criticize, disparage or otherwise comment negatively about, orally or in writing, directly or indirectly, EXLN, its subsidiaries, affiliates or any of their respective past, present or future officers, directors, employees, agents, businesses, products or services. Hinchcliffe agrees to use his best efforts to ensure that none of the members of his family so criticize or disparage any of such persons or entities. Hinchcliffe further agrees that he shall be publicly and privately cooperative and supportive of EXLN in regard to its personnel, corporate practices and policies and other matters. EXLN agrees not to disparage or make negative statements about Hinchcliffe and to be publicly and privately cooperative and supportive of Hinchcliffe in regard to his transition. 10. Hinchcliffe agrees that, except as may be required by law or as may be mutually agreed, Hinchcliffe will keep the terms and existence of this Agreement completely and strictly confidential, and that Hinchcliffe will not hereafter disclose any information concerning this Agreement to anyone, except to the extent necessary to enforce this Agreement. 11. With the exception of the personal computer set forth above, Hinchcliffe agrees to return any and all property, whether tangible or intangible, provided to Hinchcliffe by EXLN, as a condition precedent to EXLN's obligations hereunder. 12. This Agreement and the NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, attached hereto, embodies the entire understanding and agreement between the parties, and supersedes all other oral or written agreements or understandings, between the parties regarding the subject matter hereof, including without limitation any terms and conditions of any employment agreement or other similar agreement(s), and it shall be binding and inure to the benefit of the successors and assigns of each. No change, alteration or modification hereof may be made except in a writing signed by both parties hereto. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of The Commonwealth of Massachusetts (disregarding any choice of law rules which may look to the laws of any other jurisdiction).  13. EXLN shall require any successor via a Change in Control (whether direct or indirect, by purchase, merger, consolidation or otherwise) to assume expressly and agree to perform this Agreement in the same manner and to the same extent that EXLN would be required to perform it if no such succession had taken place. 14. The parties represent and acknowledge that in executing this Agreement they do not rely and have not relied upon any other representation or statement made by any person or entity with regard to the subject matter, basis, or effect of this Agreement, with the sole exception of the provisions set forth herein. Mistakes of fact or law shall not constitute grounds for modification, avoidance or rescission of the terms and conditions of this Agreement. The fact that a party or counsel for a party drafted a provision or provisions of this Agreement shall not cause that provision or those provisions to be construed against the drafting party. 15. This Settlement may be executed in one or more counterparts, each of which when so executed shall be deemed an original, but all of which together shall constitute one and the same instrument. 16. In entering into this Agreement, the parties represent that they have had the opportunity to seek the advice of legal counsel and that the terms of the Agreement have been completely read and explained to them and that those terms are fully understood and voluntarily agreed to. EXLN: Hinchcliffe: eXcelon Corporation Ross Hinchcliffe By:_____________________________ By:___________________________ Name:___________________________ Name:_________________________ (Printed or Typed) (Printed or Typed) Title:__________________________