Separation Agreement and General Release between eXcelon Corporation and Lawrence Alston

 EXLN CONFIDENTIAL 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 Lawrence Alston, an individual residing at 7 Morningside Avenue, Natick, MA 01760 ("Alston"). W I T N E S S E T H T H A T: WHEREAS, EXLN has employed Alston most recently as Vice President, Product Strategy and Chief Technology Officer; and WHEREAS, EXLN and Alston wish to set forth the terms of the termination of Alston's employment with EXLN; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXLN and Alston hereby agree as follows: 1. Alston hereby agrees to resign as Vice President, Product Strategy and Chief Technology Officer of EXLN, effective as of January 22, 2001 (the "Effective date of Termination"). At the request of EXLN, Alston will execute and deliver to EXLN a separate instrument embodying such resignation. 2. EXLN agrees to pay Alston 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 Alston with medical and dental insurance benefits consistent with those provided to Alston immediately prior to termination, less Alston's applicable contribution, for a period of seven and one half (71/2) months following the Effective Date of Termination, provided, however, that if Alston 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 Alston his performance bonus amount, pursuant to existing compensation agreements in effect for the year 2000, less applicable deductions. 3. EXLN agrees that Alston may retain the personal computer provided to him during his employment with EXLN, provided that Alston 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) Alston 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. 4. All options which have heretofore been granted to Alston 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, Alston shall have the right to exercise any vested Options, as of the Effective Date of Termination, up until July 22, 2001. 1  EXLN CONFIDENTIAL 5. Alston 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 Alston 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 Alston 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. Alston hereby acknowledges and ratifies his obligations under the NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, dated November 19, 1998 between Alston and EXLN, which is attached hereto and incorporated herein by reference, and further agrees to be bound by the terms thereof. 7. Alston, 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 Alston 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 Alston's employment by EXLN, Alston's resignation as Vice President, Product Strategy and Chief Technology Officer of EXLN, and/or the termination of Alston's employment by EXLN; provided, however, that any claims that Alston may make against EXLN for breach of this Agreement are specifically exempted from this release. Alston acknowledges and agrees that the payments and benefits to be made to Alston pursuant to this Agreement are over and above any other money or benefits that would be due to Alston under the terms of his employment with EXLN and EXLN's usual policies and practices. 8. Alston and EXLN hereby agree to be publicly supportive of each other. Alston 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. Alston 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. Alston 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 Alston and to be publicly and privately cooperative and supportive of Alston in regard to his transition. 9. Alston agrees that, except as may be required by law or as may be mutually agreed, Alston will keep the terms and existence of this Agreement completely and strictly confidential, and that Alston will not hereafter disclose any information concerning this Agreement to anyone, except to the extent necessary to enforce this Agreement. 10. With the exception of the personal computer set forth above, Alston agrees to return any and all property, whether tangible or intangible, provided to Alston by EXLN, as a condition precedent to EXLN's obligations hereunder. 2  EXLN CONFIDENTIAL 11. 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). 12. 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. 13. 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. 14. 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: Alston: eXcelon Corporation Larry Alston By:_____________________________ By:___________________________ Name:___________________________ Name:_________________________ (Printed or Typed) (Printed or Typed) Title:____________________________ 3