THIS SETTLEMENT
AGREEMENT AND GENERAL RELEASE (this “Settlement Agreement and
General Release”) is entered into as of the 11
th day of May, 2007 (the “Effective
Date”) by and between DALE R. PFOST (
“Executive”), EXEGENICS INC., a Delaware corporation
(the “Company”), and ACUITY PHARMACEUTICALS, LLC, a
Delaware limited liability company (the
“Subsidiary”).
WHEREAS, Executive
and the Company are parties to a certain employment letter dated
April 9, 2007 which sets forth the terms of the
Executive’s employment with the Company and its wholly owned
subsidiary, Acuity Pharmaceuticals, LLC (the “Employment
Letter”);
WHEREAS, Executive
and the Company desire to sever their employment relationship on an
amicable basis;
WHEREAS,
Executive’s employment with the Company will end as of the
close of business May 31, 2007 (hereinafter, the
“Separation Date”);
NOW, THEREFORE,
for and in consideration of the agreements, covenants and
conditions herein contained, the adequacy and sufficiency of which
are hereby expressly acknowledged by each of the parties hereto,
Executive, the Company and the Subsidiary agree as
follows:
1.
Settlement Payments . In consideration for the release of
claims and other promises and covenants set forth herein, the
Company shall provide the Executive with the following:
(a) continuation
of Executive’s base salary at an annual rate of $325,000,
less applicable tax withholdings, and all benefit programs provided
to the Executive pursuant to the Employment Letter from the
Effective Date through the Separation Date, payable monthly
pursuant to the Company’s normal payroll
practices;
(b) continuation
of Executive’s base salary at an annual rate of $325,000,
less applicable tax withholdings, payable monthly pursuant to the
Company’s normal payroll practices, for a period of one
(1) year beginning on the Separation Date and ending on
May 31, 2008 (the “Severance Period”);
(c) Company
assistance in transferring personal computer files stored on the
Company server and the continued forwarding of all personal
electronic mail of the Executive to the following address:
dale.pfost@gmail.com until June 15, 2007;
(d) reimbursement
to the Executive of the cost of purchasing medical benefits under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended
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(“COBRA”), during the Severance
Period or such earlier period in which Executive becomes eligible
for health care benefits through another employer. Executive agrees
to immediately notify the Company if he becomes eligible for health
care benefits through another employer prior to May 31, 2008.
Executive’s failure to promptly notify the Company of his new
health care eligibility will obligate Executive to reimburse the
Company for any COBRA payments made while the Executive was
eligible for coverage;
(e) On
the eighth day following the execution of this Settlement Agreement
and General Release by the Executive (and provided that the
Settlement Agreement and General Release is not revoked pursuant to
Section 6 hereof) and the Company, payment of up to $65,125 in
reimbursement of Executive’s unrecoverable expenses incurred
in connection with Executive’s relocation to Miami, Florida,
as itemized on Schedule 1 attached hereto, to the extent that
the Company, with the Executive’s reasonable assistance, can
not obtain an agreement to release Executive from all or part of
any of the expenses;
(f) On
the eighth day following the execution of this Settlement Agreement
and General Release (and provided that the Settlement Agreement and
General Release is not revoked pursuant to Section 6 hereof),
payment of $26,209.00, which represents the cash equivalent of
20 days’ accrued but unused vacation time remaining as
of the Separation Date; and
(g) automatic
vesting of the equity awards listed on the attached Schedule 2
(the “Equity Awards”) as of the Effective Date for a
period commencing on the Effective Date and ending at the close of
business on the last day of the Severance Period. All vested
options listed on Schedule 2 shall be exercisable on or before
the close of business on the last day of the Severance Period. The
Equity Awards shall not be subject to repurchase.
2.
Release and Waiver of Claims by Executive . In consideration
for the payments and other benefits described above in paragraph 1,
Executive hereby waives, releases and forever discharges the
Company, the Subsidiary, their health or welfare benefits plans,
affiliates, predecessors, successors or assigns, and their
respective officers, directors, trustees, employees,
representatives and agents (the “Released Parties”),
from any and all claims or liabilities of whatever kind or nature,
that Executive has ever had or which Executive now has, known or
unknown, including, but not limited to any events related to,
arising out of or in connection with Executive’s employment
with the Company and the Subsidiary. Executive specifically waives,
releases and gives up any and all claims arising from or relating
to Executive’s employment with the Company and the Subsidiary
and its termination including, but not limited to: any claims which
could be asserted now or in the future under (a) the common
law, including, but not limited to theories of breach of express or
implied duty, wrongful termination, defamation or violation of
public policy; (b) any policies, practices, or procedures of
the Company; (c) any federal and/or state statute or
regulations expressly including, but not limited to: the Executive
Retirement Income Security Act, 29 U.S.C. § 1001 et seq
.; the Family and Medical Leave Act, 29 U.S.C. § 2611 et
seq ., or COBRA; the Age Discrimination in Employment Act
(ADEA), 29 U.S.C. § 621 et seq ., Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000(e) et seq .; the
Americans with Disabilities Act, (ADA), 42 U.S.C. § 12101
et seq .; the Worker Adjustment and Retraining Notification
Act (WARN), 29 U.S.C. § 2101; the Older Workers Benefit
Protection Act of 1990, as amended (“OWBPA”), the Age
Discrimination in
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Employment Act
of 1967, as amended (the “ADEA”), and the Equal Pay
Act, 29 U.S.C. § 206(d) et seq .; (d) any claims
for attorney’s fees and costs; (e) any contract of
employment, expressed or implied; (f) any provision of the
Constitution of the United States, the State of Florida or any
other state; (g) any provision of any other law, common or
statutory, including but not limited to any law of the United
States, Florida, or any other state or government entity; and
(h) any claim for compensatory or punitive damages. These are
not complete lists and Executive waives and releases all similar
rights and claims under all other federal, state and local
discrimination provisions and all other constitutional, statutory,
regulatory and common law causes of action, whether in tort,
contract, equity or otherwise except as provided in this Agreement.
Executive further agrees that this release may be pleaded as a
complete bar to any action or suit before any court or
administrative body. To the full extent permitted by law, the
Executive covenants not to sue the Company, the Subsidiary or any
of the Released Parties or to initiate any proceedings against the
Company, the Subsidiary or any of the Released Parties based on any
matter covered by the foregoing release. The Executive agrees and
covenants that he has not and will not file, charge, claim, sue or
cause or permit to be filed any civil action, suit or legal
proceeding seeking personal, equitable or monetary relief for the
Executive in connection with any matter occurring at any time in
the past concerning Executive’s employment relationship with
the Company or the Subsidiary, up to and including the date of this
Agreement, or involving any continuing effects of any acts or
practices which may have arisen or occurred on or prior to the date
of this Agreement. The Executive further agrees and covenants that
should any person, organization, or other entity file,
char
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