Vice President, Marketing and Chief Markting Officer Employment Agreement - Alan E. Gold

NON-COMPETITION, NON-SOLICITATION, NON-DISCLOSURE AND DEVELOPMENTS AGREEMENTIn consideration of my employment, consulting or advisory relationship ("Employment"), as the casemay be, with eXcelon Corporation, a Delaware corporation with its principal place of businesslocated at 25 Mall Road, Burlington, Massachusetts 01803 (the "Company"), and in recognition of thefact that as a result of such relationship I will or may have access to confidential information, Iagree with the Company 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 thetermination of my Employment with the Company by me or the Company for any reason, includingexpiration of the previously agreed upon term of my Employment, or by the Company for Cause (asdefined in the Executive Employment Agreement), I shall not, directly or indirectly, on my behalf oron behalf of any third-party, or as owner, manager, stockholder, consultant, director, officer oremployee of any business entity, participate in the development, manufacture, license, provision orsale of any goods or services which are competitive with goods or services sold or licensed, orunder 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 anynon-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 developsor provides goods or services which are competitive with goods or services sold or licensed, orunder development, by the Company, the disagreement shall be resolved either by decision of theCompany's Board of Directors at their next regularly scheduled board meeting acting in good faithafter giving me a suitable opportunity to present my view in person and/or in writing, or if eitherI or the Company gives notice to the Board of our objection to the decision of the Board within 30days after such decision, by arbitration as provided herein. (ii) The Company and I agree that goods or services which are competitive with goods orservices developed or provided, or under development, by the Company shall not include goods andservices used by any person or entity for use as a component in a good or service which is notcompetitive 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 tochange its line of business so as to provide goods or services other than those sold or licensed, orunder development, by the Company at the commencement of my Employment, then the Company shall giveme notice of such determination.(b) Except with the prior written consent of the Company, during my employment with the Company andfor a period of one year after that employment ends for any reason, including expiration of thepreviously agreed upon term of my Employment, or by the Company for Cause, I will not directly orindirectly, 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 thecustomers 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 andfor a period of one year after that employment ends for any reason, including expiration of thepreviously agreed upon term of my Employment, or by the Company for Cause, I shall not directly orindirectly, 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 orattempt to hire away from the Company any employee of the Company (or any other person who may havebeen employed by the Company during the six months prior to the termination of my Employment), orassist in such hiring by any other person or business entity or encourage any such employee toterminate his or her employment with the Company.(d) I recognize that the Company is developing highly specialized products and services incompetition with other business entities throughout the United States and the world, which productsand services are designed to compete in regional, nation-wide and world-wide markets. In light ofthe competitive nature of the Company's products and services, I agree that the restrictionscontained in this Section 1 cannot be limited to any geographic area, and I further recognize thatthe restrictions set forth in this Section 1 are intended to protect the Company's interests in itsConfidential Information and established commercial relationships and goodwill, and agree that suchrestrictions are reasonable and appropriate for this purpose.(e) If the period of time, geographic area, or other term of any non-competition or non-solicitationrestraint specified in this Agreement is judged by a court to be unreasonable, I agree that suchterm should be modified by the court so that the term can be enforced as the court decides isreasonable.(f) If I violate any non-competition or non-solicitation restraint specified in this Agreement, Iagree that the period of the restraint shall not run during the period of the violation. Iunderstand that the purpose of this paragraph is to give the Company the protection of the restraintfor the full agreed-upon duration.2. CONFIDENTIALITY AGREEMENT(a) I acknowledge that in the course of my employment, I will gain access to and may gain possessionof Confidential Information of the Company. The term "Confidential Information" as used throughoutthis Agreement shall mean all trade secrets, proprietary information and other data or information(and any tangible evidence, record or representation thereof), whether prepared, conceived ordeveloped by an employee of the Company (including myself) or received by the Company from anoutside source, which is in the possession of the Company (whether or not the property of theCompany), which in any way relates to the present or future business of the Company or any customeror supplier of the Company, and/or which is maintained in confidence by the Company. Withoutlimiting 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 futurebusiness 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 maskingspecification, user manual, training or service manual, product specification, plan for a new orrevised product, compilation of information, or work in process, and any and all revisions andimprovements relating to any of the foregoing (in each case whether or not reduced to tangibleform); and (ii) the name of any customer, employee, prospective customer or consultant, any salesplan, marketing material, plan or survey, business plan or projections, customer list, product ordevelopment plan or specification, business proposal, financial record, business record, advertiserlists, supplier lists, customer sales analyses, price lists and any other non-public information orother record relating to the business of the Company.Notwithstanding the foregoing, the term Confidential Information shall not apply to informationwhich 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 ConfidentialInformation for any purpose or disclose Confidential Information, including Confidential Informationof any third party which the Company is under an obligation to keep confidential, to any person orentity during my employment, except as expressly authorized by and for the benefit of the Companyand in the course of my duties as an employee, or at any time after my employment ends. As part ofmy obligations to maintain the confidentiality of Confidential Information, I agree to comply withany Company policy, if any, on the protection of intellectual property. I further agree that afterthe termination and/or expiration of my employment, I shall not use or permit the use of anyConfidential Information, it being agreed that all Confidential Information shall be and remain thesole and exclusive property of the Company and that within ten (10) days after the termination orexpiration of my employment I shall either (i) deliver all Confidential Information, and all copiesthereof, to the Company, at its main office or (ii) destroy all Confidential Information, and allcopies 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 inconfidence Confidential Information acquired by me prior to my Employment by the Company. I have notentered into, and I agree I will not enter into, any agreement either written or oral in conflictherewith.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 interesttherein (whether or not patentable or registrable under copyright, patent, trademark or similar ...