Separation Agreement and General Release between eXcelon Corporation and Daniel E. O'Connor

 SEPARATION AGREEMENT AND GENERAL RELEASE This Separation Agreement and General Release ("Agreement") is made and entered into this 22nd day of January, 2001 by and between eXcelon Corporation, a Delaware Corporation ("EXLN"); and Daniel E. O'Connor, an individual residing at 1319 Monument Street, Concord, MA 01742 ("O'Connor"). W I T N E S S E T H T H A T: WHEREAS, EXLN has employed O'Connor most recently as Senior Vice President, Business Development; and WHEREAS, EXLN and O'Connor wish to set forth the terms of the termination of O'Connor's employment with EXLN; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXLN and O'Connor hereby agree as follows: 1. O'Connor hereby agrees to resign as Senior Vice President, Business Development of EXLN, effective as of January 22, 2001 (the "Effective date of Termination"). At the request of EXLN, O'Connor will execute and deliver to EXLN a separate instrument embodying such resignation. 2. EXLN agrees to pay O'Connor a total amount of $112,500 payable in installments of $7,500 on a semi-monthly basis, less applicable deductions, for a period of seven and one half (71/2) months in accordance with EXLN's standard payroll policies, and EXLN shall provide O'Connor with medical and dental insurance benefits consistent with those provided to O'Connor immediately prior to termination, less O'Connor's applicable contribution, for a period of seven and one half (71/2) months following the Effective Date of Termination, provided, however, that if O'Connor becomes re-employed with another employer and is eligible to receive such insurance benefits under another employer-provided plan, the insurance benefits set forth herein shall terminate immediately upon the initialization of such benefits under another employer-provided plan. In addition, EXLN shall pay O'Connor his performance bonus amount, pursuant to existing compensation agreements in effect for the year 2000, less applicable deductions, and shall provide O'Connor with up to a $8,000 credit for reasonable expenses related directly to out-placement-service assistance, provided O'Connor has his chosen out-placement agency bill EXLN directly for not more than said $8,000 allowance. Any expenses, in relation towards out-placement-service for O'Connor, over and above such allowance shall be O'Connor's sole responsibility. 3. EXLN agrees that O'Connor may retain the personal computer and mobile phone provided to him during his employment with EXLN(collectively the "Equipment"), provided that O'Connor 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 Equipment; (ii) O'Connor 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. In addition, EXLN agrees to provide O'Connor with voice-mail and e-mail facilities for a period ending the earlier of (i) seven and one half (71/2) months from the Effective Date of Termination or (ii) upon O'Connor's request. 1  4. All options which have heretofore been granted to O'Connor under EXLN's 1997 Nonqualified Stock Option Plan,1996 Stock Incentive and Nonqualified Stock Option Plan, 1995 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, which approval shall not be unreasonably withheld, O'Connor shall have the right to exercise any vested Options, as of the Effective Date of Termination, up until July 22, 2001. 5. O'Connor 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 O'Connor 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 O'Connor 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. 6. O'Connor hereby acknowledges and ratifies his obligations under the RESTATED AND AMENDED NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, dated January 22, 2001 between O'Connor and EXLN, which is attached hereto as EXHIBIT A and incorporated herein by reference, and further agrees to be bound by the terms thereof. 7. O'Connor, 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 O'Connor 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 O'Connor's employment by EXLN, O'Connor's resignation as Senior Vice President, Business Development of EXLN, the termination of O'Connor's employment by EXLN, any claims of wrongful discharge, any claims of intentional or negligent misrepresentation and any claims of discrimination under the common law or any statute (including, without implication of limitation, Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967); provided, however, that any claims that O'Connor may make against EXLN for breach of this Agreement are specifically exempted from this release. O'Connor acknowledges and agrees that the payments and benefits to be made to O'Connor pursuant to this Agreement are over and above any other money or benefits that would be due to O'Connor under the terms of his employment with EXLN and EXLN's usual policies and practices. O'Connor hereby waives any claim for attorney's fees or costs and any claim for reinstatement. In the event any waiver hereunder is found invalid, O'Connor must return all amounts paid to O'Connor by EXLN pursuant to Section 2 hereof. 8. EXLN hereto releases, remises, and forever discharges O'Connor of and from any and all debts, demands, actions, causes of action, suits, damages, costs and expenses, and any and all other claims, known or unknown, which it now has or has ever had against O'Connor, including without limitation any such claims in relation towards O'Connor's employment with EXLN; provided, however, that any claims that EXLN may make against O'Connor as set forth herein and for breach of this Agreement are specifically exempted from this release. 2  9. O'Connor and EXLN hereby agree to be publicly supportive of each other. O'Connor 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. O'Connor 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. O'Connor 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 O'Connor and to be publicly and privately cooperative and supportive of O'Connor in regard to his transition. 10. O'Connor agrees that, except as may be required by law or as may be mutually agreed, O'Connor will keep the terms and existence of this Agreement completely and strictly confidential, and that O'Connor 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 Equipment, O'Connor agrees to return any and all property, whether tangible or intangible, provided to O'Connor by EXLN, as a condition precedent to EXLN's obligations hereunder. 12. O'Connor acknowledges that he has been given the opportunity to consider this Agreement for twenty-one (21) days before executing it. If the Agreement is not signed by O'Connor and returned to EXLN so that EXLN receives it within twenty-one (21) days of O'Connor's receipt of the Agreement, this Agreement will not be valid. In the event that O'Connor executes and returns this Agreement within less than twenty-one (21) days of the date that O'Connor receives it, O'Connor acknowledges that such decision was entirely voluntary and that O'Connor had the opportunity to consider this Agreement for the entire twenty-one (21) day period. EXLN acknowledges that for a period of seven (7) days from the date of execution of this Agreement, O'Connor will retain the right to revoke this Agreement by written notice that EXLN receives prior to the expiration of such seven (7) day period, and that this Agreement shall not become effective or enforceable until the expiration of such revocation period. 13. 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). 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. 3  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: O'Connor: eXcelon Corporation Daniel O'Connor By:_____________________________ By:___________________________ Name:___________________________ Name:_________________________ (Printed or Typed) (Printed or Typed) Title:____________________________ EXHIBIT A AMENDED AND RESTATED NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXLN (the "Company") and O'Connor ("I") hereby agree as follows: 1. NON-COMPETE AND NON-SOLICITATION AGREEMENT (a) As long as I am employed or retained by the Company and for a period of one year after the termination of my Employment with the Company by me or the Company for any reason, including expiration of the previously agreed upon term of my Employment, or by the Company for Cause (as defined in the Executive Employment Agreement), I shall not, directly or indirectly, on my behalf or on behalf of any third-party, or as owner, manager, stockholder, consultant, director, officer or employee of any business entity, participate in the development, manufacture, license, provision or sale of any goods or services which are directly competitive with goods or services sold or licensed, or under development, by the Company without the prior written authorization of the Company; provided, however, that I may, without the Company's prior written authorization, own up to one percent (1%) of the issued and outstanding securities of any publicly held corporation or any securities in any non-public corporation which I owned prior to the date of my Employment. (i) In the event that the Company and I disagree about whether any business entity develops or provides goods or services which are directly competitive with goods or services sold or licensed, or under development, by the Company, the disagreement shall be resolved either by decision of the Company's Board of Directors at their next regularly scheduled board meeting acting in good faith after giving me a suitable opportunity to present my view in person and/or in writing, or if either I or the Company gives notice to the Board of our objection to the decision of the Board within 30 days after such decision, by arbitration as provided herein. 4  (ii) The Company and I agree that goods or services which are directly competitive with goods or services developed or provided, or under development, by the Company shall not include goods and services used by any person or entity for use as a component in a good or service which is not directly competitive with goods or services developed or provided, or under development, by the Company. (iii) If after the commencement of my Employment with the Company the Company determines to change its line of business so as to provide goods or services other than those sold or licensed, or under development, by the Company at the commencement of my Employment, then the Company shall give me notice of such determination. (b) Except with the prior written consent of the Company, during my employment with the Company and for a period of one year after that employment ends for any reason, including expiration of the previously agreed upon term of my Employment, or by the Company for Cause, I will not directly or indirectly, either for myself or for any other entity or third-party, or as owner, manager, stockholder, consultant, director, officer or employee of any business entity, take away any of the customers that the Company had enjoyed during my Employment with the Company. (c) Except with the prior written consent of the Company, during my employment with the Company and for a period of one year after that employment ends for any reason, including expiration of the previously agreed upon term of my Employment, or by the Company for Cause, I shall not directly or indirectly, either for myself or for any other entity or third-party, or as owner, manager, stockholder, consultant, director, officer or employee of any business entity, solicit, induce or attempt to hire away from the Company any employee of the Company (or any other person who may have been employed by the Company during the six months prior to the termination of my Employment), or assist in such hiring by any other person or business entity or encourage any such employee to terminate his or her employment with the Company. (d) I recognize that the Company is developing highly specialized products and services in competition with other business entities throughout the United States and the world, which products and services are designed to compete in regional, nation-wide and world-wide markets. In light of the competitive nature of the Company's products and services, I agree that the restrictions contained in this Section 1 cannot be limited to any geographic area, and I further recognize that the restrictions set forth in this Section 1 are intended to protect the Company's interests in its Confidential Information and established commercial relationships and goodwill, and agree that such restrictions are reasonable and appropriate for this purpose. (e) If the period of time, geographic area, or other term of any non-competition or non-solicitation restraint specified in this Agreement is judged by a court to be unreasonable, I agree that such term should be modified by the court so that the term can be enforced as the court decides is reasonable. (f) If I violate any non-competition or non-solicitation restraint specified in this Agreement, I agree that the period of the restraint shall not run during the period of the violation. I understand that the purpose of this paragraph is to give the Company the protection of the restraint for the full agreed-upon duration. 5  2. CONFIDENTIALITY AGREEMENT (a) I acknowledge that in the course of my employment, I will gain access to and may gain possession of Confidential Information of the Company. The term "Confidential Information" as used throughout this Agreement shall mean all trade secrets, proprietary information and other data or information (and any tangible evidence, record or representation thereof), whether prepared, conceived or developed by an employee of the Company (including myself) or received by the Company from an outside source, which is in the possession of the Company (whether or not the property of the Company), which in any way relates to the present or future business of the Company or any customer or supplier of the Company, and/or which is maintained in confidence by the Company. Without limiting the generality of the foregoing, "Confidential Information" shall mean all trade secrets, know-how, proprietary information and other information or data relating to the present or future business of the Company, including but not limited to: (i) any idea, improvement, invention, innovation, development, technical data, design, formula, device, pattern, concept, computer program, software, firmware, source code, object code, algorithm, subroutine, object module, schematic, model, diagram, flow chart, chip masking specification, user manual, training or service manual, product specification, plan for a new or revised product, compilation of information, or work in process, and any and all revisions and improvements relating to any of the foregoing (in each case whether or not reduced to tangible form); and (ii) the name of any customer, employee, prospective customer or consultant, any sales plan, marketing material, plan or survey, business plan or projections, customer list, product or development plan or specification, business proposal, financial record, business record, advertiser lists, supplier lists, customer sales analyses, price lists and any other non-public information or other record relating to the business of the Company. Notwithstanding the foregoing, the term Confidential Information shall not apply to information which has otherwise lawfully entered the public domain, or is generally known in the industry. (b) I agree to keep all Confidential Information strictly confidential and not to use Confidential Information for any purpose or disclose Confidential Information, including Confidential Information of any third party which the Company is under an obligation to keep confidential, to any person or entity during my employment, except as expressly authorized by and for the benefit of the Company and in the course of my duties as an employee, or at any time after my employment ends. As part of my obligations to maintain the confidentiality of Confidential Information, I agree to comply with any Company policy, if any, on the protection of intellectual property. I further agree that after the termination and/or expiration of my employment, I shall not use or permit the use of any Confidential Information, it being agreed that all Confidential Information shall be and remain the sole and exclusive property of the Company and that within ten (10) days after the termination or expiration of my employment I shall either (i) deliver all Confidential Information, and all copies thereof, to the Company, at its main office or (ii) destroy all Confidential Information, and all copies thereof, and deliver a sworn notice to the Company certifying to such destruction. (c) I hereby represent that my performance of all of the terms of this Agreement and as an employee, consultant or advisor of the Company does not and will not breach any agreement to keep in confidence Confidential Information acquired by me prior to my Employment by the Company. I have not entered into, and I agree I will not enter into, any agreement either written or oral in conflict herewith. 6  3. DEVELOPMENTS AGREEMENT (a) If at any time or times during my Employment, I shall (either alone or with others) make, conceive, learn, discover or reduce to practice any invention, modification, discovery, design, development, improvement, process, software program, work of authorship, documentation, formula, data, technique, know-how, secret, concept, idea, and fixed expression thereof or any interest therein (whether or not patentable or registrable under copyright, patent, trademark or similar statutes or subject to analogous protection) (herein called "Developments") that relate to the business of the Company, whether directly or indirectly, and/or that relate to software provided by suppliers to the Company and incorporated in the Company's products, or any of the goods and services sold, licensed or under development by the Company; and/or result from the use of premises, facilities or personal property tangible or intangible owned, leased or contracted for by the Company; and/or that occur during the period of, as a consequence of, or in connection with my employment by the Company; and/or that result from tasks assigned to me by the Company; such Developments and the benefits thereof shall immediately become the sole and absolute property of the Company and its assigns, and I shall promptly disclose to the Company (or any persons designated by it) each such Development and hereby assign any rights I may have or acquire in the Developments and benefits and/or rights resulting therefrom to the Company and its assigns without further compensation and waive any and all moral rights to all Developments. All Developments shall be the sole property of the Company and its assigns. The Company shall be the sole owner of all patents, copyrights and other rights relating to Developments. I acknowledge that all Developments are "work(s) made for hire", as defined under the United States Copyright Act, and become the property of the Company, and shall communicate, without cost or delay, and without publishing the same, all available information relating thereto (with all necessary plans and models) to the Company. (b) Upon disclosure of each Development to the Company, I will, during my Employment and at any time thereafter, at the request and cost of the Company, sign, execute, make and do all such deeds, documents, acts and things as the Company and its duly authorized agents may reasonably require: (i) to apply for, obtain and vest in the name of the Company alone (unless the Company otherwise directs) letters of patent, copyrights or other analogous protection in any country throughout the world and when so obtained or vested to renew and restore the same; and (ii) to defend any opposition proceedings in respect of such applications and any opposition proceedings or petitions or applications for revocation of such letters of patent, copyright or other analogous protection. In the event the Company is unable, after reasonable effort, to secure my signature on any letters of patent, copyright or other analogous protection relating to a Development, whether because of my physical or mental incapacity or for any other reason whatsoever, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact, to act for and in my behalf and stead to execute and file any such application or applications and to do all other lawfully permitted acts to further the prosecution and issuance of letters of patent, copyright or other analogous protection thereon with the same legal force and effect as if executed by me. (c) This Section 3 shall not apply to any Development which meets all of the following three conditions: (i) I do the work entirely by myself without use of the Company's facilities, knowledge, property or resources, (ii) I do the work entirely on my own time, and (iii) the Development does not relate, either, directly or indirectly, to the Company's business or research or to its planned business or research. 7  4. MISCELLANEOUS (a) I agree that because of the nature of the Company's business, the restrictions contained in this Agreement are reasonable and necessary in order to protect the legitimate interests of the Company. (b) I understand that this Agreement does not create an obligation on the Company or any other person or entity to continue my Employment. (c) Any waiver by the Company of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of such provision or any other provision hereof. (d) I hereby agree that each provision herein shall be treated as a separate and independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of any of the other clauses herein. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to scope, activity or subject so as to be unenforceable at law, such provision or provisions shall be construed by the appropriate judicial body by limiting and reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. (e) I recognize that money damages alone would not adequately compensate the Company in the event of breach by me of this Agreement, and I therefore agree that, in addition to all other remedies available to the Company at law or in equity, the Company shall be entitled to injunctive relief for the enforcement hereof. Failure by the Company to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such terms, covenants or conditions. (f) My obligations under this Agreement shall survive the termination or expiration of my Employment regardless of the manner of termination, except that the provisions of Section 1 shall survive in accordance with their terms. (g) The term "Company" shall include eXcelon Corporation and any of its subsidiaries, subdivisions or affiliates. The Company shall have the right to assign this Agreement to its successor and assigns, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by said successors or assigns. (h) This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (disregarding any choice of law rules which may look to the laws of any other jurisdiction). In the event of any court action to enforce any provision of this Agreement, The parties consent to and submit to the jurisdiction of the Superior Court of the Commonwealth of Massachusetts and the United States District Court for the District of Massachusetts. (i) This Agreement embodies the entire understanding, 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). No change, alteration, modification, waiver or termination of this Agreement or any of the provisions herein contained shall be binding upon me or the Company unless made in writing and signed by myself and an authorized officer of the Company. In the event of any inconsistency between this Agreement and any other contract between me and the Company, the provisions of this Agreement shall prevail. (j) All notices, requests, demands and other communications hereunder must be in writing and shall be deemed to have been duly given if delivered by hand or mailed, within the continental United States by first class, registered mail, receipt requested, postage and registry fees prepaid, to the applicable party at the address set forth below or at such other address as is provided by a party pursuant to the terms hereof. 8  (k) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in Boston, Massachusetts in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof and shall be final and binding upon the parties hereto. Notwithstanding anything to the contrary contained in this Section 4(k), the Company shall have the right to seek injunctive relief, specific performance or other equitable relief against me in a court of competent jurisdiction. BY PLACING MY SIGNATURE HEREUNDER, I ACKNOWLEDGE THAT I HAVE READ ALL OF THE PROVISIONS OF THIS AGREEMENT AND THAT I AGREE TO ALL OF ITS TERMS. SIGNATURE: ------------------------------------------- Daniel E. O'Connor ADDRESS: 1319 Monument Street, Concord, MA 01742 DATE: January 22, 2001 ACCEPTED: EXCELON CORPORATION 25 Mall Road Burlington, MA 01803 SIGNATURE: ------------------------------------------- Brian Greene TITLE: Vice President and General Counsel DATE: January 22, 2001