EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into as of November 16, 2001
(the "Effective Date"), by and between eXcelon, a Delaware corporation with its principal offices
located at 00 Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (together with its successors and assigns, the
"Company"), and Xxxxx Xxxxxx, an individual residing at (omitted), (the "Executive").
WHEREAS, the Executive is currently employed as an executive by eXcelon;
WHEREAS, the Company desires to employ the Executive and has offered such employment to the
Executive, and the Executive desires to be employed by the Company and has accepted employment by
the Company an executive with the Company, in accordance with the provisions contained in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein,
the parties agree as follows:
1. PRIOR AGREEMENTS SUPERSEDED. This Agreement shall supersede and replace in its entirety
any prior agreement.
2. TERM. The term of this Agreement (the "Term") shall commence on the Effective Date and
end on the six-month anniversary of the Effective Date; provided, however, that the Term shall
thereafter be automatically and indefinitely extended for additional six-month periods unless the
Company gives the Executive at least 90 days prior written notice electing not to so extend the
Term.
3. EMPLOYMENT, ACCEPTANCE, DUTIES AND OTHER ACTIVITIES.
3.1. ACCEPTANCE. The Company agrees to employ the Executive during the Term, and
the Executive accepts such employment. As a condition precedent to the Company's obligations
hereunder, the Executive shall enter into the attached NON-COMPETITION, NON-SOLICITATION,
NON-DISCLOSURE AND DEVELOPMENTS AGREEMENT with the Company, which is incorporated herein by
reference.
3.2. DUTIES. During the Term, Executive shall serve as a member of the executive
staff of the Company; and shall be assigned no duties or responsibilities that are materially
inconsistent with, or that materially impair his ability to discharge, the foregoing duties and
responsibilities.
4. COMPENSATION.
4.1 SALARY.
(a) The Company shall pay the Executive during the Term a salary of $144,000 per
annum, less all required and authorized withholdings and deductions. Salary payments shall be made
to the Executive in accordance with the Company's regular pay practices for executives.
4.2 EMPLOYEE BENEFIT PLANS. During the Term, and otherwise as provided in this
Agreement, the Executive shall be entitled to receive such benefits and to participate in such
benefits plans as are generally provided from time to time by the Company to its senior management
employees.
4.3 ACCELERATION OF VESTING AND EXTENSION OF TIME FOR EXERCISE OF OPTIONS IN
CERTAIN EVENTS.
(a) Upon the occurrence of any Change in Control, as defined in Section 5.6(b) below, each
option to acquire common stock, $.001 par value ("Common Stock") of the Company that is
then held by the Executive (each an "Option") shall vest immediately, so as to become fully
exercisable.
(b) If the Company terminates the Executive's employment Without Cause during the Initial
Term or, if later, within twelve(12) months after a Change in Control, or if during either
such period the Executive voluntarily terminates his or her employment pursuant to Section
5.5(b) below,
(i) each Option held by the Executive shall vest immediately so as to become fully exercisable (to
the extent not already fully exercisable), and (ii) the expiration date by which any Option held by
the Executive must be exercised will automatically be extended to the first anniversary of the date
of such termination.
5. TERMINATION OF EMPLOYMENT.
5.1 DEFINITION OF TERMS
(a) The Severance Amount shall be equal to the sum of (i) the Executive's
then-current monthly salary multiplied by six (6) provided such monthly rate shall not be less than
his salary on the effective date including bonuses and commissions.
(b) The Severance Benefits shall be all allowances and benefits, including, but
not limited to, medical and dental insurance benefits; provided, however, that if, and only if, the
allowances and benefits being provided to the Executive on the date the Executive terminates cannot
be provided under the terms of such plans (and such plans cannot be amended by the Board of
Directors of the Company to provide such benefits and allowances without adversely affecting the tax
treatment thereof to the Company or the participants thereunder), the Company shall pay to the
Executive, his spouse, his estate or his legal representative, as the case may be, the value of such
allowances and benefits in a lump sum payment within thirty (30) days after the date the Executive
terminates.
5.2 TERMINATION UPON DEATH.
(a) The Term of employment of the Executive under this Agreement shall terminate
upon the death of the Executive. Following the death of the Executive while he is employed by the
Company, but in no event later than the thirtieth (30th) day following the date of his death, the
Company shall make a lump sum cash Severance Amount payment to his surviving spouse, if she survives
him, or to his estate if his spouse does not survive him.
(b) In addition to the Severance Amount payable pursuant to SUBSECTION 6.2(a), the
Company shall provide Severance Benefits to the Executive's surviving spouse, if any, for six (6)
months following the date of the Participant's death.
5.3 TERMINATION UPON DISABILITY.
(a) If, during the Term of his employment, the Executive suffers a Disability (as
hereinafter defined) for a period of three (3) consecutive months or more, the Company may, after
the expiration of such three-month period and prior to the Executive resuming his full-time duties
hereunder, terminate the employment of the Executive upon prior written notice to the Executive
which notice shall specify a date (which may be the date of such notice or any later date) as of
which such termination is to become effective (the "Disability Termination Date"). Subsequent to the
Disability Termination Date, the Executive or his legal representatives shall be entitled to receive
any benefits which may be payable under all disability insurance policies and disability plans
provided by the Company, without offset for any other insurance or disability payments to which the
Executive may be entitled under insurance policies owned by him.
(b) In addition to the benefits payable pursuant to SUBSECTION 6.3(a), within
thirty (30) days following the Disability Termination Date, the Company shall pay the Executive or
his legal representatives the Severance Amount and shall provide Severance Benefits for six (6)
months following the Disability Termination Date.
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(c) For purposes of this SUBSECTION 6.3, "Disability" shall mean any mental or
physical condition or incapacity which prevents the Executive from substantially discharging his
duties and responsibilities as an officer of the Company. In the event of a disagreement between the
Company and the Executive as to whether the Executive suffers from a Disability, the Executive shall
submit to the physical or mental examination of a physician licensed under the laws of the State of
Massachusetts who shall be mutually selected by the Executive (or his legal representative) and the
Company, and such physician shall make the determination of whether the Executive suffers from any
Disability. In the absence of fraud or bad faith, the determination of such physician shall be final
and binding upon the Company and the Executive. The entire cost of any such examination shall be
borne by the Company.
5.4 TERMINATION FOR CAUSE. In the event of termination of the Executive's
employment for Cause, all compensation of the Executive and any other rights the Executive may have
under this Agreement shall cease upon the termination date of his employment, the Executive shall
receive no Severance Amount, no Severance Benefits and no further payments or benefits shall be paid
or payable to the Executive by the Company for any period thereafter, except to the extent that
Executive shall have accrued benefits under any retirement plan adopted by the Company for the
benefit of its employees and except for all compensation owing hereunder to the Executive as of the
date of termination for Cause. For purposes of this Agreement, "CAUSE" shall mean
(a) being convicted of criminal conduct constituting a felony offense, other than a traffic
offense, whether or not related to the Executive'semployment;
(b) negligence in the performance of the Executive's duties on behalf of the Company which
results in a material detriment to the Company and is not cured or corrected within thirty (30) days
after the Executive's receipt of written notice from the Company referring to this paragraph and
describing with specificity the conduct or omission constituting negligence;
(c) fraud or embezzlement with respect to funds of the Company, as determined by the Board;
(d) the Executive's failure to comply with lawful instructions given to the Executive by
the Board of Directors which is not cured or corrected within thirty (30) days after the Executive's
receipt of written notice from the Company referring to this paragraph and describing with
specificity the instructions with which the Executive did not comply;
(e) the Executive's material failure to comply with reasonable policies, directives,
standards and regulations adopted by the Company, including, without limitation, the Company's
policies regarding xxxxxxx xxxxxxx, except any such failure, that, if capable of cure, is remedied
by the Executive within thirty (30) days after the Executive's receipt of written notice from the
Company referring to this paragraph and describing with specificity the failure of the Executive to
comply;
(f) breach by the Executive of the Company Proprietary Rights Agreement; and
(g) any intentional act by the Executive that would reasonably be expected to have, and
that does have, a material adverse effect on the goodwill or reputation of the Company or on its
relationships with its customers or employees. Notwithstanding the foregoing, a refusal by the
Executive to move the Executive's residence away from the Boston area at the Company's request will
not constitute a failure to comply under this paragraph.
5.5 VOLUNTARY TERMINATION BY EXECUTIVE.
(a) The Executive may voluntarily terminate his employment at any time upon ninety
(90) days written notice to the Company. In such case, the Executive shall receive no Severance
Amount, no Severance Benefits and no further payments or benefits shall be paid or payable to the
Executive by the Company for any period after such termination of employment, except to the extent
that Executive shall have accrued benefits under any plan adopted by the Company for the benefit of
its employees generally and except for all compensation owing hereunder to the Executive as of the
date of voluntary termination.
(b) Notwithstanding the foregoing, within 180 days after an Event of Constructive
Termination (as hereinafter defined) the Executive may voluntarily terminate employment and within
thirty (30) days thereafter, the Company shall pay the Executive (i) the Severance Amount, and (ii)
Severance Benefits for a period of twelve (12) months. An "Event of Constructive Termination" shall
mean (v) a relocation of the Executive's principal workplace to a location more than 50 miles from
the location of such workplace on the Effective Date without the Executive's express written
consent; (w) an assignment to the Executive of duties or responsibilities inconsistent with his
position as set forth in Section 3.2 hereof or inappropriate an executiveof the Company; (x) a
reduction in the Executive's compensation or benefits without the express written consent of the
Executive; or (z) delivery of written notice by the Company that the Term of the Agreement will not
be extended in accordance with Section 2 hereof.
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5.6 TERMINATION BY THE COMPANY DUE TO A CHANGE IN CONTROL.
(a) If the Company terminates the Executive's employment within twelve (12) months
after a Change in Control (as hereinafter defined), the Executive shall receive the Severance Amount
payable in one lump sum on the effective date of such termination and the Severance Benefits for a
period of twelve (12) months following the termination of the Executive's employment.
(b) For purposes of this Agreement, a "Change of Control" shall mean: (i) the
acquisition by an individual, entity, group or any other person of beneficial ownership of
thirty-five percent (35%) or more of either (x) the then-outstanding shares of common stock of the
Company or (y) the combined voting power of the election of directors for the Company; and/or (ii)
the sale of substantially all of the Company's assets or a merger or sale of stock wherein the
holders of the Company's capital stock immediately prior to such sale do not hold at least a
majority of the outstanding capital stock of the Company or its successor immediately following such
sale; and/or (iii) individuals who, as of the date hereof, constitute the Board of Directors (the
"Incumbent Board") cease for any reason to constitute at least a majority of the Board of Directors;
provided, however, that any individual becoming a director subsequently to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than the Board of Directors.
(c) The Company 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 the Company would be
required to perform it if no such succession had taken place.
5.7 TERMINATION WITHOUT CAUSE. In the event that the Executive' employment under
this Agreement is Terminated Without Cause (as hereinafter defined), the Company shall pay the
Executive, on the date of such termination, the Severance Amount as well as the Severance Benefits
for a period of six (6) months. Termination Without Cause shall mean any termination of Executive's
employment under this Agreement, other than (a) termination upon death in accordance with SECTION
6.2, (b) termination upon Disability in accordance with SECTION 6.3, (c) termination for Cause in
accordance with SECTION 6.4, (d) voluntary termination by the Executive in accordance with SECTION
6.5, (e) termination by the Company due to a Change in Control in accordance with SECTION 6.6, or
(f) termination by expiration of the Term due to the non-extension of the Term in accordance with
SECTION 2.
6. INDEMNIFICATION.
6.1 The Company agrees that (i) if the Executive is made a party, or is threatened
to be made a party, to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he is or was a director, officer, employee, agent,
manager, consultant or representative of the Company or eXcelon, or is or was serving at the request
of the Company or eXcelon, or in connection with his service under this Agreement or the Prior
Agreement, as a director officer, employee, agent, manager, consultant or representative of another
person, or (ii) if any claim is made, or is threatened to be made, that arises out of or relates to
the Executive's service in any of the foregoing capacities, then the Executive shall promptly be
indemnified and held harmless by the Company to the fullest extent legally permitted, or authorized,
by the Company's certificate of incorporation, bylaws or other organization documents or Board
resolutions, against any and all costs, expenses liabilities and losses (including, without
limitation, judgments, interest, expenses of investigation, penalties, fines, ERISA excise taxes or
penalties, reasonable attorneys' fees, and amounts paid or to be paid in settlement) incurred or
suffered by Executive in connection therewith and such indemnification shall continue as to the
Executive even if he has ceased to be a director, officer, employee, agent, manager, consultant or
representative of the Company or eXcelon and shall insure to the benefit of the Executive's heirs,
executors, administrators and legal representatives.
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6.2 The Company agrees to advance to the Executive all costs and expenses incurred
by him in connection with any event described in this SECTION 6 to the fullest extent legally
permitted, or authorized, by the Company's certificate of incorporation, bylaws or other
organization documents or Board resolutions within fifteen (15) days after receiving written notice
requesting such an advance, which notice (a) shall include an undertaking by the Executive to repay
the amount advanced if he is ultimately determined not to be entitled to indemnification against
such costs and expenses and (b) shall be accompanied by reasonable documentation of the costs and
expenses for which advancement is sought. No amendment by the Company at any time on or after the
Effective Date of the provisions of the Company's certificates of incorporation or bylaws shall be
effective to reduce any of the Executive's rights to indemnification, or advancement of costs and
expenses, under this SECTION
6.3 During the Term and for a period of six (6) years thereafter, a directors and
officers' liability insurance policy (or policies) shall be kept in place providing comprehensive
coverage to the Executive to the extent that such coverage is then provided by the Company for any
other present or former senior executive or director of the Company with respect to such senior
executive's or director's service as such.
6.4 The provisions of this section shall survive the termination or expiration of
this Agreement, irrespective of the reasons for such termination or expiration.
7. ATTORNEYS' FEES. In the event a party seeks to enforce any provision of this Agreement
and receives injunctive relief or other equitable relief from a court of competent jurisdiction
which is final and not subject to appeal, such party shall be entitled to recover its reasonable
attorneys' fees and costs incurred with respect to obtaining such relief from the other party.
8. OTHER PROVISIONS.
8.1 AMOUNTS PAYABLE LESS WITHHOLDING TAXES. The amounts payable by the Company
hereunder shall be less any federal, state or local withholding taxes and social security.
8.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding between the Company and the Executive, and supersedes all prior negotiations,
agreements (including the Prior Agreement), arrangements, and understandings, both written or oral,
between the Company and the Executive with respect to the subject matter and the Term of this
Agreement.
8.3 WAIVER OR AMENDMENT.
(a) The waiver by either party of a breach or violation of any term or provision
of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent
breach or violation of any provision of this Agreement or of any other right or remedy.
(b) No provision in this Agreement may be amended unless such amendment is set
forth in a writing that specifically refers to this Agreement and is signed by the Executive and the
Company.
8.4 GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts without regard to its conflict of laws rules.
8.5 ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be binding
upon, each of the Company and the Executive and their respective heirs, personal representatives,
legal representatives, successors and assigns.
8.6 SEVERABILITY. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the enforceability of
the remaining portions of this Agreement or any part hereof. If any part of this Agreement shall be
declared invalid by a court of competent jurisdiction, this Agreement shall be construed as if such
invalid part had not been inserted. IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first written above.
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EXECUTIVE eXcelon Corp.
__________________________ By: _________________________
Name: _______________________
Title: ______________________
Date: __________________ Date: __________________
eXcelon Corp.
By: _________________________
Name: _______________________
Title: ______________________
Date: __________________
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