AMENDED AND RESTATED VENTURE LOAN AND SECURITY AGREEMENT

EXHIBIT 10.3

AMENDED AND RESTATED VENTURE LOAN AND SECURITY AGREEMENT

by and among

HORIZON TECHNOLOGY FUNDING COMPANY LLC,
a Delaware limited liability company
76 Batterson Park Road
Farmington, CT 06032

as Lender

and

ACUITY PHARMACEUTICALS, LLC f/k/a e-Acquisition Company II-B, LLC,
a Delaware limited liability company, successor by merger to Acuity Pharmaceuticals, Inc.
3701 Market Street
Philadelphia, PA 19104

And

EXEGENICS, INC.,
a Delaware corporation
1250 Pittsford-Victor Road
Pittsford, NY 14534

collectively, as Borrower

COMMITMENT AMOUNT: $4,000,000

Commitment Termination Date:      September 15, 2005

     WHEREAS, the Lender and Acuity Corp originally entered into a certain Venture Loan and Security Agreement dated as of September 14, 2005 (the “Original Loan Agreement”), pursuant to which the Lender made a loan to Acuity Corp (the “Original Loan”) in the original principal amount of Four Million Dollars ($4,000,000) as evidenced by a certain Secured Promissory Note dared September 14, 2005 executed by Acuity Corp in favor of Lender (the “Original Note”);

     WHEREAS, in connection with the making of the Loan, Acuity Corp granted each of Horizon Technology Funding Company II LLC and Horizon Technology Funding Company III LLC a warrant to purchase certain preferred stock of Acuity Corp (collectively, the “Original Warrants”), which Original Warrants, by virtue of the Merger (as hereafter defined), will constitute warrants of eXegenics;

     WHEREAS, pursuant to a certain Merger Agreement and Plan of Reorganization dated on or about the Execution Date hereof (the “Merger Agreement”) by and among Acuity Corp, Froptix Corporation, eXegenics, e-Acquisition Company I-A, LLC, and e-Acquisition Company II-B, LLC, Acuity Corp shall be merged with and into e-Acquisition Company II-B, LLC, with e-Acquisition Company II-B, LLC surviving the merger and changing its name to Acuity Pharmaceuticals, LLC (“Acuity”) and pursuant to which the capital stock of Acuity Corp shall be converted into the right to receive capital stock of eXegenics (the “Merger”);

     WHEREAS, pursuant to the Merger Agreement and by operation of law, all of the debts, liabilities, obligations, restrictions and duties of Acuity Corp shall become the debts, liabilities, obligations, restrictions and duties of Acuity;

     WHEREAS, Acuity has requested that the Lender consent to the Merger;

     WHEREAS, Lender is willing to consent to the Merger, as evidenced by it execution of this Agreement, provided that (a) Acuity Corp, Acuity and eXegenics execute this Agreement pursuant to which, among other things, Acuity and eXegenics will assume the Obligations and grant a security interest in all of their personal property (as set forth herein) to secure the Obligations, and (b) Acuity and eXegenics execute a secured promissory note which will amend and restate the Original Note;

NOW THEFORE, the Lender, Acuity and eXegenics hereby agree as follows:

AGREEMENT

     1.  Definitions and Construction .

          1.1 Definitions . As used in this Agreement, the following capitalized terms shall have the following meanings:

     “ Account Control Agreement ” means an agreement acceptable to Lender which perfects via control Lender’s security interest in Borrower’s deposit accounts and/or accounts holding securities.

     “ Account Collateral ” means accounts receivable due or to become due under all purchase orders and contracts for the sale of products or the performance of services or both (and related general intangibles in the nature of rights to payment) and the proceeds thereof.

     “ Acuity ” means Acuity Pharmaceuticals, LLC f/k/a e-Acquisition Company II-B, LLC, a Delaware limited liability company which is a wholly owned subsidiary of eXegenics, successor by merger to Acuity Corp.

     “ Acuity Corp ” means Acuity Pharmaceuticals, Inc, a Delaware corporation.

     “ Affiliate ” means any Person that owns or controls directly or indirectly ten percent (10%) or more of the stock of another entity, any Person that controls or is controlled by or is under common control with such Persons or any Affiliate of such Persons and each of such Person’s officers, directors, joint venturers or partners.

     “ Agreement ” means this certain Venture Loan and Security Agreement by and between Borrower and Lender dated as of the date on the cover page hereto (as it may from time to time be amended or supplemented in writing signed by the Borrower and Lender).

     “ Borrower ” means, collectively, Acuity and eXegenics.

     “ Borrower’s Home State ” means Pennsylvania.

     “ Business Day ” means any day that is not a Saturday, Sunday, or other day on which banking institutions are authorized or required to close in Connecticut or Borrower’s Home State.

     “ Claim ” has the meaning given such term in Section 10.3 of this Agreement

     “ Code ” means the Uniform Commercial Code as adopted and in effect in the State of Connecticut, as amended from time to time; provided that if by reason of mandatory provisions of law, the creation and/or perfection or the effect of perfection or non-perfection of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than Connecticut, the term “Code” shall also mean the Uniform Commercial Code as in effect from time to time in such jurisdiction for purposes of the provisions hereof relating to such creation, perfection or effect of perfection or non-perfection.

     “ Collateral ” has the meaning given such term in Section 4.1 of this Agreement.

     “ Commitment Amount ” has the meaning as set forth on the cover page of this Agreement.

     “ Commitment Fee ” has the meaning given such term in Section 2.6(b) of this Agreement.

     “ Commitment Termination Date ” has the meaning set forth on the cover page of this Agreement.

     “ Default ” means any event which with the passing of time or the giving of notice or both would become an Event of Default hereunder.

     “ Default Rate ” means the per annum rate of interest equal to five percent (5%) over the Loan Rate, but such rate shall in no event be more than the highest rate permitted by applicable law to be charged on commercial loans in a default situation.

     “ Disclosure Schedule ” means Exhibit A attached hereto.

     “ Effective Date ” means September 14, 2005.

     “ Environmental Laws ” means all foreign, federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authorities, in each case relating to environmental, health, safety and land use matters, including the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic Substances Control Act and the Emergency Planning and Community Right-to-Know Act.

     “ Equity Securities ” of any Person means (a) all common stock, preferred stock, participations, shares, partnership interests, membership interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non-voting) and (b) all warrants, options and other rights to acquire any of the foregoing.

     “ ERISA ” has the meaning given to such term in Section 7.12 of this Agreement.

     “ Event of Default ” has the meaning given to such term in Section 8 of this Agreement.

     “ Execution Date ” means the date on which this Agreement is executed, as set forth on the cover page of this Agreement.

     “ eXegenics ” means eXegenics, Inc., a Delaware corporation.

     “ Funding Certificate ” means a certificate executed by a Responsible Officer of Borrower substantially in the form of Exhibit B or such other form as Lender may agree to accept.

     “ Funding Date ” means the date on which the Loan is made to or on account of Borrower under this Agreement.

     “ GAAP ” means generally accepted accounting principles as in effect in the United States of America from time to time, consistently applied.

     “ Good Faith Deposit ” has the meaning given such term in Section 2.6(a ) of this Agreement.

     “ Governmental Authority ” means (a) any federal, state, county, municipal or foreign government, or political subdivision thereof, (b) any governmental or quasi-governmental

agency, authority, board, bureau, commission, department, instrumentality or public body, (c) any court or administrative tribunal, or (d) with respect to any Person, any arbitration tribunal or other non-governmental authority to whose jurisdiction that Person has consented.

     “ Hazardous Materials ” means all those substances which are regulated by, or which may form the basis of liability under, any Environmental Law, including all substances identified under any Environmental Law as a pollutant, contaminant, hazardous waste, hazardous constituent, special waste, hazardous substance, hazardous material, or toxic substance, or petroleum or petroleum derived substance or waste.

     “ Indebtedness ” means, with respect to Borrower, the aggregate amount of, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade payables aged less than one hundred eighty (180) days), (d) all capital lease obligations of such Person, (e) all obligations or liabilities of others secured by a Lien on any asset of such Person, whether or not such obligation or liability is assumed, (f) all obligations or liabilities of others guaranteed by such Person, and (g) any other obligations or liabilities which are required by GAAP to be shown as debt on the balance sheet of such Person. Unless otherwise indicated, the term “ Indebtedness ” shall include all Indebtedness of Borrower.

     “ Indemnified Person ” has the meaning given such term in Section 10.3 of this Agreement.

     “ Intellectual Property ” means all of Borrower’s right, title and interest in and to patents, patent rights (and applications and registrations therefor), trademarks and service marks (and applications and registrations therefor), inventions, copyrights, mask works (and applications and registrations therefor), trade names, trade styles, software and computer programs, source code, object code, trade secrets, methods, processes, know how, drawings, specifications, descriptions, and all memoranda, notes, and records with respect to any research and development, all whether now owned or subsequently acquired or developed by Borrower and whether in tangible or intangible form or contained on magnetic media readable by machine together with all such magnetic media (but not including embedded computer programs and supporting information included within the definition of “goods” under the Code).

     “ Investment ” means the purchase or acquisition of any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, or the extension of any advance, loan, extension of credit or capital contribution to, or any other investment in, or deposit with, any Person.

     “ Landlord Agreement ” means an agreement substantially in the form provided by Lender to Borrower or such other form as Lender may agree to accept.

     “ Lender ” means the Lender as set forth on the cover page of this Agreement.

     “ Lender’s Expenses ” means all reasonable costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with the preparation, negotiation, documentation, administration and funding of the Loan Documents; and Lender’s reasonable

attorneys’ fees, costs and expenses incurred in amending, modifying, enforcing or defending the Loan Documents (including fees and expenses of appeal or review), including the exercise of any rights or remedies afforded hereunder or under applicable law, whether or not suit is brought, whether before or after bankruptcy or insolvency, including without limitation all fees and costs incurred by Lender in connection with Lender’s enforcement of its rights in a bankruptcy or insolvency proceeding filed by or against Borrower or its Property.

     “ Lien ” means any voluntary or involuntary security interest, pledge, bailment, lease, mortgage, hypothecation, conditional sales and title retention agreement, encumbrance or other lien with respect to any Property in favor of any Person.

     “ Loan ” means the advance of credit by Lender to Borrower under this Agreement.

     “ Loan Documents ” means, collectively, this Agreement, the Note, any Landlord Agreement, any Account Control Agreement and all other documents, instruments and agreements entered into in connection with this Agreement, all as amended or extended from time to time.

     “ Loan Rate ” means, with respect to the Loan, the per annum rate of interest (based on a year of twelve 30-day months) equal to the greater of (a) 11.50% or (b) 11.50% plus the difference between (i) the one month LIBOR Rate, as reported in the Wall Street Journal , on the date which is five (5) days before the Funding Date for the Loan (or, if such date is not a Business Day, the next earlier Business Day) and (ii) 3.00%. Notwithstanding the foregoing, the Loan Rate shall not exceed the highest rate permitted by applicable law

     “ Maturity Date ” means July 1, 2008, or if earlier, the date of acceleration of the Loan following an Event of Default or the date of prepayment, whichever is applicable.

     “ Note ” means the amended and restated promissory note executed in connection with the Loan in substantially the form of Exhibit C attached hereto.

     “ Obligations ” means all debt, principal, interest, fees, charges, expenses and reasonable attorneys’ fees and costs and other amounts, obligations, covenants, and duties owing by Borrower to Lender of any kind and description (whether pursuant to or evidenced by the Loan Documents, or by any other agreement between Lender and Borrower, and whether or not for the payment of money), whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including all Lender’s Expenses.

     “ Officer’s Certificate ” means a certificate executed by a Responsible Officer substantially in the form of Exhibit E or such other form as Lender may agree to accept.

     “ Payment Date ” has the meaning given such term in Section 2.2(a) of this Agreement.

     “ Permitted Indebtedness ” means and includes:

                    (a) Indebtedness of Borrower to Lender;

                    (b) Indebtedness arising from the endorsement of instruments in the ordinary course of business;

                    (c) Indebtedness existing on the date hereof and set forth on the Disclosure Schedule;

                    (d) Indebtedness of Borrower in an aggregate original principal amount not to exceed Two Hundred Fifty Thousand Dollars ($250,000) which is secured by Liens permitted under clause (e) of the definition of Permitted Liens;

                    (e) Other Indebtedness in an aggregate original principal amount not to exceed Five Hundred Thousand Dollars ($500,000);

                    (f) The Junior Obligations (as defined in the Subordination Agreement); and

                    (g) Extensions, refinancings, modifications, amendments and restatements of any items of Permitted Indebtedness above, provided that the principal amount thereof is not increased or the terms thereof are not modified to impose more burdensome terms upon Borrower.

     “ Permitted Liens ” means and includes:

                    (a) the Lien created by this Agreement;

                    (b) Liens for fees, taxes, levies, imposts, duties or other governmental charges of any kind which are not yet delinquent or which are being contested in good faith by appropriate proceedings which suspend the collection thereof ( provided that such appropriate proceedings do not involve any substantial danger of the sale, forfeiture or loss of any material item of Collateral which in the aggregate is material to Borrower and that Borrower has adequately bonded such Lien or reserves sufficient to discharge such Lien have been provided on the books of Borrower);

                    (c) Liens identified on the Disclosure Schedule;

                    (d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens arising in the ordinary course of business and which are not delinquent or remain payable without penalty or which are being contested in good faith and by appropriate proceedings ( provided that such appropriate proceedings do not involve any substantial danger of the sale, forfeiture or loss of any material item of Collateral or Collateral which in the aggregate is material to Borrower and that Borrower has adequately bonded such Lien or reserves sufficient to discharge such Lien have been provided on the books of Borrower);

                    (e) Liens upon any equipment or other personal property acquired by Borrower after the Effective Date to secure (i) the purchase price of such equipment or other personal property, or (ii) lease obligations or indebtedness incurred solely for the purpose of financing the acquisition of such equipment or other personal property; provided that such Liens

are confined solely to the equipment or other personal property so acquired and the proceeds thereof and the amount secured does not exceed the acquisition price thereof;

                    (f) licenses of Intellectual Property entered into in the ordinary course of business (whether as licensor or licensee);

                    (g) bankers’ liens, rights of setoff and similar Liens incurred on deposits made in the ordinary course of business and Liens in favor of financial institutions arising in connection with Borrower’s deposit accounts or securities accounts held at such institutions to secure customary fees and charges;

                    (h) any judgment, attachment or similar Lien not resulting in an Event of Default hereunder;

                    (i) Liens securing the Junior Obligations (as defined in the Subordination Agreement); and

                    (j) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by Liens described above but any extension, renewal or replacement Lien must be limited to the property encumbered by the existing Lien and the principal amount of the indebtedness may not increase.

     “ Person ” means and includes any individual, any partnership, any corporation, any business trust, any joint stock company, any limited liability company, any unincorporated association or any other entity and any domestic or foreign national, state or local government, any political subdivision thereof, and any department, agency, authority or bureau of any of the foregoing.

     “ Property ” means any interest in any kind of property or asset, whether real, personal or mixed, whether tangible or intangible.

     “ Responsible Officer ” has the meaning given such term in Section 6.3 of this Agreement.

     “ Scheduled Payments ” has the meaning given such term in Section 2.2(a) of this Agreement.

     “ Solvent ” has the meaning given such term in Section 5.11 of this Agreement.

     “ Subordination Agreement ” means the Amended and Restated Subordination Agreement, dated on or about the Execution Date, among Borrower, Lender and The Frost Group, LLC.

     “ Subsidiary ” means any corporation or other entity of which a majority of the outstanding Equity Securities entitled to vote for the election of directors or other governing body (otherwise than as the result of a default) is owned by Borrower directly or indirectly through Subsidiaries.

     “ Transfer ” has the meaning given such term in Section 7.4 of this Agreement.

          1.2 Construction . References in this Agreement to “Articles,” “Sections,” “Exhibits,” “Schedules” and “Annexes” are to recitals, articles, sections, exhibits, schedules and annexes herein and hereto unless otherwise indicated. References in this Agreement and each of the other Loan Documents to any document, instrument or agreement shall include (a) all exhibits, schedules, annexes and other attachments thereto, (b) all documents, instruments or agreements issued or executed in replacement thereof, and (c) such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified and supplemented from time to time and in effect at any given time. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement or any other Loan Document shall refer to this Agreement or such other Loan Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Loan Document, as the case may be. The words “include” and “including” and words of similar import when used in this Agreement or any other Loan Document shall not be construed to be limiting or exclusive. Unless otherwise indicated in this Agreement or any other Loan Document, all accounting terms used in this Agreement or any other Loan Document shall be construed, and all accounting and financial computations hereunder or thereunder shall be computed, in accordance with GAAP, and all terms describing Collateral shall be construed in accordance with the Code. The terms and information set forth on the cover page of this Agreement are incorporated into this Agreement.

     2.  Loan; Repayment .

          2.1 Commitment .

                    (a)  The Commitment Amount . Subject to the terms and conditions of this Agreement and relying upon the representations and warranties herein set forth as and when made or deemed to be made, Lender agrees to lend to Borrower on or before Commitment Termination Date, the Loan in the amount of Commitment Amount.

                    (b)  The Loan and the Note . The obligation of Borrower to repay the unpaid principal amount of and interest on the Loan shall be evidenced by the Note issued to Lender.

                    (c)  Use of Proceeds . The proceeds of the Loan shall be used solely for working capital or general corporate purposes of Borrower.

                    (d)  Termination of Commitment to Lend . Notwithstanding anything in the Loan Documents, Lender’s obligation to lend the undisbursed portion of the Commitment Amount to Borrower hereunder shall terminate on the earlier of (i) at Lender’s sole election, the occurrence of any Default or Event of Default hereunder, and (ii) the Commitment Termination Date. Notwithstanding the foregoing, Lender’s obligation to lend the undisbursed portion of the Commitment Amount to Borrower shall terminate if, in Lender’s sole judgment, there has been a material adverse change in the general affairs, management, results of operations, condition (financial or otherwise) or prospects of Borrower, whether or not arising from transactions in the ordinary course of business, or there has been any material adverse deviation by Borrower from the business plan of Borrower presented to Lender on or before the date of this Agreement.

          2.2 Payments .

                    (a)  Scheduled Payments . Borrower shall make payments of accrued interest only on the outstanding principal amount of the Loan through and including July 1, 2007 and commencing August 1, 2007, twelve (12) level payments of principal plus accrued interest on the outstanding principal amount of the Loan on each subsequent Payment Date as set forth in the Note (collectively, the “ Scheduled Payments ”). Borrower shall make such Scheduled Payments commencing on the date set forth in the Note and continuing thereafter on the first Business Day of each calendar month (each a “ Payment Date ”) through the Maturity Date. In any event, all unpaid principal and accrued interest shall be due and payable in full on the Maturity Date.

                    (b)  Interim Payment . Unless the Funding Date for the Loan is the first day of a calendar month, Borrower shall pay the per diem interest (accruing at the Loan Rate from the Funding Date through the last day of that month) payable with respect to the Loan on the first Business Day of the next calendar month.

                    (c)  Payment of Interest . Borrower shall pay interest on the Loan at a per annum rate of interest equal to the Loan Rate. All computations of interest (including interest at the Default Rate, if applicable) shall be based on a year of twelve 30-day months. Notwithstanding any other provision hereof, the amount of interest payable hereunder shall not in any event exceed the maximum amount permitted by the law applicable to interest charged on commercial loans.

                    (d)  Application of Payments . All payments received by Lender prior to an Event of Default shall be applied as follows: (1) first, to Lender’s Expenses then due and owing; and (2) second to all Scheduled Payments then due and owing ( provided , however , if such payments are not sufficient to pay the whole amount then due, such payments shall be applied first to unpaid interest at the Loan Rate, then to the remaining amount then due). After an Event of Default, all payments and application of proceeds shall be made as set forth in Section 9.7 .

                    (e)  Late Payment Fee . Borrower shall pay to Lender a late payment fee equal to four percent (4%) of any Scheduled Payment not paid when due, provided that such fee shall not be due if (i) such late payment is the first such late payment made by Borrower and (ii) such payment is paid within ten (10) days of when such payment is due.

                    (f)  Default Rate . Borrower shall pay interest at a per annum rate equal to the Default Rate on any amounts required to be paid by Borrower under this Agreement or the other Loan Documents (including Scheduled Payments), payable with respect to any Loan, accrued and unpaid interest, and any fees or other amounts which remain unpaid after such amounts are due. If an Event of Default has occurred and the Obligations have been accelerated (whether automatically or by Lender’s election), Borrower shall pay interest on the aggregate, outstanding accelerated balance hereunder from the date of the Event of Default until all Events of Default are cured, at a per annum rate equal to the Default Rate.

          2.3 Prepayments .

                    (a)  Mandatory Prepayment Upon Acceleration . If the Loan is accelerated following the occurrence of an Event of Default pursuant to Section 9.1(a) hereof, then Borrower, in addition to any other amounts which may be due and owing hereunder, shall immediately pay to Lender the amount set forth in Section 2.3(b) below, as if the Borrower had opted to prepay on the date of such acceleration.

                    (b) Upon three (3) Business Days’ prior written notice to Lender, Borrower may, at its option, prepay all, and not less than all, of the Loan in full by paying to Lender an amount equal to (i) any accrued and unpaid interest on the outstanding principal balance of the Loan; (ii) an amount equal to (A) if the Loan is prepaid within twenty-four (24) months from the Effective Date three (3%) percent of the then outstanding principal balance of the Loan, or (B) if the Loan is prepaid more than twenty-four (24) months after the Effective Date, one and one-half (1.5%) percent of the then outstanding principal balance of the Loan; (iii) the outstanding principal balance of the Loan; and (iv) all other sums, if any, that shall have become due and payable hereunder.

          2.4 Other Payment Terms .

                    (a)  Place and Manner . Borrower shall make all payments due to Lender in lawful money of the United States. All payments of principal, interest, fees and other amounts payable by Borrower hereunder shall be made, in immediately available funds, not later than 10:00 a.m. Connecticut time, on the date on which such payment is due. Borrower shall make such payments to Lender via wire transfer as follows:

                    (b)  Date . Whenever any payment is due hereunder on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be.

          2.5 Procedure for Making Loan .

                    (a)  Notice . Whenever Borrower desires that Lender make the Loan, Borrower shall notify Lender of the date on which Borrower desires Lender to make the Loan. Borrower’s notice shall be made at least five (5) Business Days in advance of the desired Funding Date, unless Lender elects at its sole discretion to allow the Funding Date to be within five (5) Business Days of the notice. Borrower’s execution and delivery to Lender of the Note shall be Borrower’s agreement to the terms and calculations thereunder with respect to the Loan. Lender’s obligation to make the Loan shall be expressly subject to the satisfaction of the conditions set forth in Sections 3.1 and 3.2 .

                    (b)  Loan Rate Calculation . Prior to each Funding Date, Lender shall establish the Loan Rate with respect to the Loan, which shall be set forth in the Note to be executed by Borrower and shall be conclusive in the absence of a manifest error.

                    (c)  Disbursement . Lender shall disburse the proceeds of the Loan by wire transfer to Borrower at the account specified in the Funding Certificate for the Loan.

          2.6 Good Faith Deposit; Legal and Closing Expenses; and Commitment Fee .

                    (a)  Good Faith Deposit . Borrower has delivered to Lender a good faith deposit in the amount of Twenty Thousand Dollars ($20,000) (the “ Good Faith Deposit ”). The Good Faith Deposit will be utilized to pay the Commitment Fee.

                    (b)  Legal, Due Diligence and Documentation Expenses . Borrower shall pay to Lender concurrently with its execution and delivery of this Agreement Lender’s legal, due diligence and documentation expenses in connection with the negotiation and documentation of this Agreement and the Loan Documents; provided, however, that Borrower shall not be liable for any such expenses which in the aggregate exceed Ten Thousand Dollars ($10,000).

                    (c)  Commitment Fee . On the Effective Date, Borrower paid Lender a commitment fee in the amount of Twenty-Five Thousand Dollars ($25,000) (the “ Commitment Fee ”). The Commitment Fee shall be retained by Lender and be deemed fully earned upon receipt. No further amounts shall be due hereunder as a commitment or similar fee.

          2.7 Joint Liability . Each of Acuity and eXegenics covenants and agrees with Lender as follows:

                    (a) The Obligations include all present and future indebtedness, duties, obligations, and liabilities, whether now existing or contemplated or hereafter arising, of each of Acuity and eXegenics, other than Permitted Indebtedness.

                    (b) Reference in this Agreement and the other Loan Documents to the “Borrower” shall mean each or any one of Acuity and eXegenics, jointly and severally, unless the context requires otherwise.

                    (c) Acuity and eXegenics in the discretion of their respective management are to agree among themselves as to the allocation of the benefits of the proceeds of the Loan,

provided, however, that each shall be deemed to have represented and warranted to Lender at the time of allocation that each use of proceeds is permitted under this Agreement.

                    (d) For administrative convenience, Acuity hereby irrevocably appoints eXegenics as its attorney-in-fact, with power of substitution (with the prior written consent of Lender in the exercise of its sole and absolute discretion), in its respective name or in the name of eXegenics or otherwise to take any and all actions with respect to this Agreement, the other Loan Documents, the Obligations and/or the Collateral (including, without limitation, the proceeds thereof) as eXegenics may so elect from time to time, including, without limitation, actions to enter into, execute, deliver, amend, modify, restate, substitute, extend and/or renew this Agreement, any other Loan Documents, security agreements, mortgages, deposit account agreements, instruments, certificates, waivers, letter of credit applications, releases, documents and agreements from time to time. The foregoing appointment is coupled with an interest, cannot be revoked without the prior written consent of Lender, and may be exercised from time to time through eXegenics’ Responsible Officer, or other Person or Persons designated by eXegenics to act from time to time on behalf of eXegenics.

                    (e) Lender assumes no responsibility or liability for any errors, mistakes, and/or discrepancies in the oral, telephonic, written or other transmissions of any instructions, orders, requests and confirmations between Lender and any one or more of Acuity and eXegenics in connection with the Loan or any other transaction in connection with the provisions of this Agreement.

          2.8 Inter-Company Debt, Contribution . Without implying any limitation on the joint and several nature of the Obligations, Lender agrees that, notwithstanding any other provision of this Agreement, Acuity and eXegenics may create reasonable inter-company indebtedness between or among them with respect to the allocation of the benefits and proceeds of any Loan under this Agreement. Acuity and eXegenics agree among them, and Lender consents to that agreement, that each of them shall have rights of contribution from all of the other to the extent either of them incurs Obligations in excess of the proceeds of the Loan received by, or allocated to purposes for the direct benefit of, such company. All such indebtedness and rights shall be, and are hereby agreed by Acuity and eXegenics to be, subordinate in priority and payment to the indefeasible repayment in full in cash of the Obligations, and, during the existence of an Event of Default unless Lender agrees in writing otherwise, shall not be exercised or repaid in whole or in part until all of the Obligations have been indefeasibly paid in full in cash. Each of Acuity and eXegenics agrees that all of such inter-company indebtedness and rights of contribution are part of the Collateral and secure the Obligations.

          2.9 Borrower is an Integrated Group . Each of Acuity and eXegenics hereby represents and warrants to Lender that it will derive benefits, directly and indirectly, from the Loan, both in its separate capacity and as a member of the integrated group to which it belongs and because the successful operation of the integrated group is dependent upon the continued successful performance of the functions of the integrated group as a whole, (i) the terms of the Loan provided under this Agreement are more favorable than would otherwise be obtainable by them individually, and (ii) the additional administrative and other costs and reduced

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flexibility associated with individual loan arrangements which would otherwise be required if obtainable would substantially reduce the value to them of the Loan.

          2.10 Primary Obligations . The obligations and liabilities of each of Acuity and eXegenics under this Agreement shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that Acuity and eXegenics may have against the other Borrower, Lender and/or any guarantor and shall not be conditional or contingent upon pursuit or enforcement by Lender of any remedies it may have against Acuity and eXegenics with respect to this Agreement, or any of the other Loan Documents, whether pursuant to the terms hereof or thereof or by operation of law. Without limiting the generality of the foregoing, Lender shall not be required to make any demand upon either Acuity or eXegenics, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against either Acuity or eXegenics or the Collateral either, before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against either Acuity and eXegenics under this Section 2.10, either in the same action, if any, brought against any one or more of Acuity and eXegenics or in separate actions or proceedings, as often as Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of either Acuity or eXegenics, any other guarantor or any obligor under any of the Loan Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against Acuity and eXegenics, in their respective capacities as a Borrower, or under any of the Loan Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Agreement in any manner whatsoever, and this Section 2.10 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.10 that each of Acuity and eXegenics shall and does hereby waive all rights and benefits which might accrue to any guarantor by reason of any such proceeding, Acuity and eXegenics each agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.10 regardless of, and irrespective of, any modification, limitation or discharge of the liability of any one or more of either Acuity or eXegenics, any guarantor or any obligor under any of the Loan Documents, that may result from any such proceedings.

     3.  Conditions of Loan .

          3.1 Conditions Precedent to Closing . At the time of the execution and delivery of this Agreement, Lender shall have received, in form and substance reasonably satisfactory to Lender, all of the following:

                    (a)  Amended and Restated Loan Agreement . This Agreement duly executed by Borrower and Lender.

                    (b)  Note . Borrower shall have duly executed and delivered to Lender the Note in the amount of the Loan, which shall cause the Original Note to be cancelled and Lender shall deliver the Original Note to Lender marked cancelled.

                    (c)  UCC Financing Statements . Lender shall have received such documents, instruments and agreements, including UCC financing statements or amendments to UCC financing statements, as Lender shall reasonably request to evidence the perfection and priority of the security interests granted to Lender pursuant to Section 4 . Borrower authorizes Lender to file any UCC financing statements, continuations of or amendments to UCC financing statements it deems necessary to perfect its security interest in the Collateral.

                    (d)  Secretary’s Certificate . A certificate of the secretary or assistant secretary of each Borrower with copies of the following documents attached: (i) the certificate of incorporation and bylaws of Borrower certified by Borrower as being complete and in full force and effect on the date thereof, (ii) incumbency and representative signatures, and (iii) resolutions authorizing the execution and delivery of this Agreement and the Note.

                    (e)  Good Standing Certificates . A good standing certificate from each Borrower’s state of incorporation and the state in which Borrower’s principal place of business is located, each dated as of a recent date.

                    (f)  Consents . All necessary consents of shareholders and other third parties with respect to the execution, delivery and performance of this Agreement, the Warrant and the other Loan Documents.

                    (g)  No Default . No Default or Event of Default shall have occurred and be continuing.

                    (h)  Other Documents . Such other documents and completion of such other matters, as Lender may deem necessary or appropriate.

          3.2 Post-Closing Conditions . Within thirty (30) days of the Execution Date, the Borrower shall deliver the following to the Lender:

                    (a)  Account Control Agreements . Account Control Agreements for all of Borrower’s deposit accounts and accounts holding securities duly executed by all of the parties thereto, in the forms provided by Lender.

                    (b)  Certificate of Insurance . Evidence of the insurance coverage required by Section 6.8 of this Agreement.

                    (c)  Other Documents . Such other documents and completion of such other matters, as Lender may deem necessary or appropriate.

          3.3 Covenant to Deliver . Borrower agrees (not as a condition but as a covenant) to deliver to Lender each item required to be delivered to Lender as a condition to the Loan, if the Loan is advanced. Borrower expressly agrees that the extension of the Loan prior to the receipt by Lender of any such item shall not constitute a waiver by Lender of Borrower’s obligation to deliver such item, and any such extension in the absence of a required item shall be in Lender’s sole discretion.

     4.  Creation of Security Interest .

          4.1 Grant of Security Interest . Borrower grants to Lender a valid and continuing security interest in all presently existing and hereafter acquired or arising Collateral in order to secure prompt, full and complete payment of any and all Obligations and in order to secure prompt, full and complete performance by Borrower of each of its covenants and duties under each of the Loan Documents. The “ Collateral ” shall mean and include all right, title, interest, claims and demands of Borrower in and to all personal property of Borrower, including without limitation, all of the following:

                    (a) All goods (and embedded computer programs and supporting information included within the definition of “goods” under the Code) and equipment now owned or hereafter acquired, including, without limitation, all laboratory equipment, computer equipment, office equipment, machinery, fixtures, vehicles (including motor vehicles and trailers), and any interest in any of the foregoing, and all attachments, accessories, accessions, replacements, substitutions, additions, and improvements to any of the foregoing, wherever located;

                    (b) All inventory now owned or hereafter acquired, including, without limitation, all merchandise, raw materials, parts, supplies, packing and shipping materials, work in process and finished products including such inventory as is temporarily out of Borrower’s custody or possession or in transit and including any returns upon any accounts or other proceeds, including insurance proceeds, resulting from the sale or disposition of any of the foregoing and any documents of title representing any of the above, and Borrower’s books relating to any of the foregoing;

                    (c) All contract rights and general intangibles (except to the extent included within the definition of Intellectual Property), now owned or hereafter acquired, including, without limitation, goodwill, license agreements, franchise agreements, blueprints, drawings, purchase orders, customer lists, route lists, infringements, claims, software, computer programs, computer disks, computer tapes, literature, reports, catalogs, design rights, income tax refunds, payment intangibles, commercial tort claims, payments of insurance and rights to payment of any kind;

                    (d) All now existing and hereafter arising accounts, contract rights, royalties, license rights, license fees and all other forms of obligations owing to Borrower arising out of the sale or lease of goods, the licensing of technology or the rendering of services by Borrower (subject, in each case, to the contractual rights of third parties to require funds received by Borrower to be expended in a particular manner), whether or not earned by performance, and any and all credit insurance, guaranties, and other security therefor, as well as all merchandise returned to or reclaimed by Borrower and Borrower’s books relating to any of the foregoing;

                    (e) All documents, cash, deposit accounts, letters of credit (whether or not the letter of credit is evidenced by a writing), certificates of deposit, instruments, promissory notes, chattel paper (whether tangible or electronic) and investment property, including, without limitation, all securities, whether certificated or uncertificated, security entitlements, securities accounts, commodity contracts and commodity accounts, and all financial assets held in any

securities account or otherwise, wherever located, now owned or hereafter acquired and Borrower’s books relating to the foregoing, excluding, in each case, any debt or equity securities of eXegenics in any Subsidiary or other Investment, including, without limitation, Froptix, LLC; and

                    (f) Any and all claims, rights and interests in any of the above and all substitutions for, additions and accessions to and proceeds thereof, including, without limitation, insurance, condemnation, requisition or similar payments and proceeds of the sale or licensing of Intellectual Property to the extent such proceeds no longer constitute Intellectual Property; but

                    (g) Notwithstanding the foregoing, the Collateral shall not include any Intellectual Property; provided , however , that the Collateral shall include all accounts receivables, accounts, and general intangibles that consist of rights to payment and proceeds from the sale, licensing or disposition of all or any part, or rights in, the foregoing (the “ Rights to Payment ”). Notwithstanding the foregoing, if a judicial authority (including a U.S. Bankruptcy Court) holds that a security interest in the underlying Intellectual Property is necessary to have a security interest in the Rights to Payment, then the Collateral shall automatically, and effective as of the date hereof, include the Intellectual Property to the extent necessary to permit perfection of Lender’s security interest in the Rights to Payment.

          4.2 After-Acquired Property . If Borrower shall at any time acquire a commercial tort claim, as defined in the Code, Borrower shall immediately notify Lender in writing signed by Borrower of the brief details thereof and grant to Lender in such writing a security interest therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to Lender.

          4.3 Duration of Security Interest . Lender’s security interest in the Collateral shall continue until the payment in full and the satisfaction of all Obligations and termination of Lender’s commitment to fund any Loan, whereupon such security interest shall terminate. Lender shall, at Borrower’s sole cost and expense, execute such further documents and take such further actions as may be reasonably necessary to make effective the release contemplated by this Section 4.3 , including duly executing and delivering termination statements for filing in all relevant jurisdictions under the Code.

          4.4 Location and Possession of Collateral . The Collateral is and shall remain in the possession of Borrower at its location listed on the cover page hereof or as set forth in the Disclosure Schedule and at any additional bona fide places of business established by Borrower from time to time. Borrower shall remain in full possession, enjoyment and control of the Collateral (except only as may be otherwise required by Lender for perfection of its security interest therein) and so long as no Event of Default has occurred and is continuing, shall be entitled to manage, operate and use the same and each part thereof with the rights and franchises appertaining thereto; provided that the possession, enjoyment, control and use of the Collateral shall at all time be subject to the observance and performan