Continuing Employment Agreement and General Release between eXcelon Corporation and Brian Otis

 CONTINUING EMPLOYMENT AGREEMENT AND GENERAL RELEASE This Continuing Employment Agreement and General Release ("Agreement") is made and entered into this 30th day of March, 2001 (the "Effective Date") by and between eXcelon Corporation, a Delaware Corporation ("EXLN"), and Brian Otis, an individual residing at 1510 Salem Street, North Andover, MA 01845 ("Otis"). W I T N E S S E T H T H A T: WHEREAS, EXLN has employed Otis most recently as Senior Vice President, Operations; and WHEREAS, EXLN and Otis wish to set forth the terms of the termination of Otis' employment with EXLN; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, EXLN and Otis hereby agree as follows: 1. Otis hereby agrees to resign as an officer and Senior Vice President, Operations of EXLN, effective as of March 31, 2001, and shall assume the position of Vice President, Data Management Division of EXLN until the end of the Continuation Period, as defined below. At the request of EXLN, Otis will execute and deliver to EXLN a separate instrument embodying such resignation. 2. During the period beginning on March 31, 2001 and continuing until March 31, 2002 (the "Continuation Period"), EXLN shall pay Otis, pursuant to EXLN's standard payroll policies, an amount equal to $6,093.75 for each of a total of twenty-four (24) pay periods, less applicable deductions. In addition, EXLN shall pay Otis his performance bonus amount, pursuant to existing compensation agreements in effect for the year 2000, less applicable deductions, and shall provide Otis with medical and dental insurance coverage under COBRA, at EXLN's expense but less Otis' applicable contribution for such insurance, until the end of the Continuation Period; provided, however, that if Otis 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 Otis shall have the election to continue such coverage, at Otis' sole expense. Notwithstanding any termination of such insurance benefits as set forth above, all other benefits and payments set forth herein shall continue in full force and effect. Except as expressly set forth in this Agreement, as of March 31, 2001, Otis shall not be entitled to benefit from or continue to participate in any bonus or deferred compensation plan(s) maintained by EXLN. In addition to the amounts set forth above, EXLN shall pay Otis his performance bonus amount for the year 2001 in a lump sum payment of $90,000.00, less applicable deductions, upon March 31, 2001, provided that Otis is still an employee of EXLN on March 30, 2001. In the event of a "Change of Control"(a Change of Control shall be deemed to have occurred if EXLN (1) is acquired by, merged into or consolidated with another corporation or entity under circumstances in which the stockholders of EXLN immediately prior to such acquisition, merger or consolidation do not own immediately after giving effect to such acquisition, merger or consolidation shares of capital stock representing at least fifty percent (50%) of the voting power of EXLN or the surviving or resulting corporation or entity, as the case may be, and/or (2) sells or otherwise disposes of all or substantially all of its assets; provided, however, that no such acquisition, merger, consolidation, or disposition of assets shall constitute a Change of Control if such transactions take place between or among (x) two or more subsidiaries of EXLN (if any) only or (y) EXLN and one or more of its subsidiaries (if any) only) during the Continuation Period, all amounts outstanding and owing to Otis, as set forth above, shall be paid to Otis in a lump sum payment, less applicable deductions, thirty (30) days after the closing date giving effect to such Change of Control. 3. From March 31, 2001 until the end of the Continuation Period, and in consideration of the payments described in the immediately preceding paragraph, Otis shall continue as an employee of EXLN and shall use his best efforts to perform such duties as the Board of Directors of EXLN, or the Chief Executive Officer of EXLN, shall reasonably assign to him. Notwithstanding the foregoing, Otis shall have the right to accept other employment, in addition to his employment by EXLN, as of March 31, 2001.  4. EXLN agrees that Otis may retain the personal computer, mobile telephone and personal digital assistant provided to him during his employment with EXLN (collectively the "Equipment"), provided that Otis 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, will be removed and deleted from such Equipment at the end of the Continuation Period; (ii) Otis 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. As a condition of Otis' employment by EXLN during the Continuation Period, EXLN agrees to provide Otis with voice-mail and e-mail facilities for a period ending the earlier of (i) the end of the Continuation Period or (ii) upon Otis' request. 5. All options which have heretofore been granted to Otis 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 end of the Continuation Period, the date on which Otis' employment with EXLN terminates pursuant to the terms of this Agreement. It is specifically acknowledged by the parties hereto that the period from March 31, 2001 until March 31, 2002, the conclusion of the Continuation Period, shall constitute continued employment by EXLN for the purpose of any provisions of such Options relating to the vesting thereof including the 24 month acceleration upon Change of Control and that no Option or portion thereof shall vest after the last scheduled vesting date prior to or on March 31, 2002, the last day of the Continuation Period. 6. Otis specifically acknowledges that the payments made and benefits extended after March 31,2001 by EXLN are in lieu of all other benefits and payments which otherwise may have been payable to Otis 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 after March 31, 2001 Otis hereby waives any rights he may have in or to any such other benefits or payments, including without limitation any benefits and payments under Otis' Executive Employment Agreement, dated November 19, 1998, which is superseded in its entirety by this Agreement, it being the intention of the parties hereto to convert and merge all such rights into this Agreement after March 31, 2001. 7. Otis hereby acknowledges and ratifies his obligations under the NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT, dated November 19, 1998 between Otis and EXLN, a copy of which is attached hereto and incorporated herein by reference, and Otis further agrees to be bound by the terms thereof. 8. Otis, for good and valuable consideration the receipt of which is hereby acknowledged, for himself and his legal representatives, successors, and assigns hereby unconditionally and irrevocably 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 successors, predecessors, and assigns, of and from all manner of actions, causes of actions, suits, debts, demands, damages, costs, expenses, attorneys' fees, obligations, agreements, and claims whatsoever, at law, in equity, or otherwise, known or unknown, which Otis has or may have, either now or at any time before the last day of the Continuation Period, against EXLN, including but not limited to any claims arising out of or in any way related to Otis' employment by EXLN, Otis' resignation as an officer and Senior Vice President, Operations of EXLN, the termination of Otis' 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 Otis may make against EXLN for breach of this Agreement are specifically exempted from this release. Otis acknowledges and agrees that the payments and benefits to be made to Otis pursuant to this Agreement are over and above any other money or benefits that would be due to Otis under the terms of EXLN's usual policies and practices. Otis hereby waives any claim for attorney's fees or costs and any claim for reinstatement. In the event any waiver hereunder is found invalid, Otis must return all amounts paid to Otis by EXLN pursuant to Section 2 hereof. 2  9. Otis and EXLN hereby agree to be publicly supportive of each other. Otis 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. Otis 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. Otis 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 Otis and to be publicly and privately cooperative and supportive of Otis in regard to his transition. 10. The parties agree that, except as may be required by law or as may be mutually agreed, each party will keep the terms and existence of this Agreement completely and strictly confidential, and that each party will not hereafter disclose any information concerning this Agreement to anyone, except to legal counsel; for accounting purposes and to the extent necessary to enforce this Agreement. 11. With the exception of the Equipment, Otis agrees to return any and all property, whether tangible or intangible, provided to Otis by EXLN at the termination of the Continuation Period. 12. Otis 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 Otis and returned to EXLN so that EXLN receives it within twenty-one (21) days of Otis' receipt of the Agreement, this Agreement will not be valid. In the event that Otis executes and returns this Agreement within less than twenty-one (21) days of the date that Otis receives it, Otis acknowledges that such decision was entirely voluntary and that Otis 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, Otis 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. 15. This Agreement 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. 3  EXLN: Otis: eXcelon Corporation Brian Otis By:_____________________________ By:_________________________________ Name:___________________________ Name:_______________________________ (Printed or Typed) (Printed or Typed) Title:__________________________ 4