SETTLEMENT AGREEMENT AND GENERAL RELEASE
EXHIBIT 10.1
AND GENERAL RELEASE
THIS SETTLEMENT AGREEMENT AND GENERAL RELEASE (this “Settlement Agreement and General
Release”) is entered into as of the 11th day of May, 2007 (the “Effective Date”) by and
between XXXX X. XXXXX ( “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: xxxx.xxxxx@xxxxx.xxx 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 Xxxxxxxxxxxx Xxx, (XXX), 00 X.X.X. § 00000 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 xxx 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, xxx 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, charge, claim, xxx, or cause or permit to be filed any civil action, suit or
legal proceeding involving any matter occurring at any time in the past, Executive will not seek or
accept any personal relief in such civil action, suit or legal proceeding. This release does not
apply to (a) claims that may arise after this Settlement Agreement and General Release is executed,
(b) any claim seeking to enforce rights under this Settlement Agreement and General Release, (c)
any claim to be indemnified by the Subsidiary or the Company (including rights to advance
reimbursement for costs and expenses) pursuant to any provision of the Subsidiary’s or the
Company’s certificate of incorporation, bylaws or any indemnification agreement between the
Executive and the Subsidiary or the Company. Notwithstanding anything to the contrary herein, this
release shall not restrict or adversely affect the Executive’s ability to exercise any vested
Equity Awards or otherwise infringe upon the Executive’s ownership of any of the Company’s or
Subsidiary’s securities.
3. Confidentiality; Survival of Covenants. Executive acknowledges that, during his
employment with the Company and/or the Subsidiary, he had access to confidential information, trade
secrets, identity of customers and suppliers and identity of products under development relating
to, or concerned with, the past, present, or future business, finances, services, customers, and
policies of the Company and the Subsidiary (“Proprietary Information”). Executive agrees that he
will not, unless required by court order, judgment or decree, directly or indirectly use, divulge,
furnish or make accessible any Proprietary Information to any other person or entity. This
provision survives the termination of the Agreement. The Executive also acknowledges that he
continues to be bound by and hereby affirms the non-competition provision contained in Section 14
of the Letter Agreement and the covenants contained in the Inventions and Proprietary Information
Agreement entered into by the Executive.
4. Confidentiality of the Agreement. Executive shall not disclose or publicize the
terms of this Settlement Agreement and General Release to any person or entity, except that
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Employee may disclose the terms, and/or fact of this Settlement Agreement and General Release
to immediate family members, Executive’s accountants and attorneys and to others as required by
law. The Company and the Subsidiary shall not disclose or publicize the terms of this Settlement
Agreement and General Release to any person or entity, except as business (e.g., recording of the
settlement on the Company’s books, accounting records, tax records, etc.) or legal necessity may
require. Any individual to whom such disclosures are made will be instructed that the information
so disclosed must be kept confidential.
5. Non-Disparagement. Executive agrees that he will not now, or in the future,
directly or indirectly, disrupt, damage, injure or interfere with or make disparaging remarks about
the Company’s or the Subsidiary’s business, whether by way of interfering with or destroying its
relationship with any of its clients or potential clients, customers, agents, employees,
consultants, suppliers representatives, vendors or any other person or entity (whether or not such
relationships have been reduced to formal contracts).
6. Opportunity to Review and Right to Revoke. Executive acknowledges that Executive
is acting of Executive’s own free will, that Executive has been afforded at least twenty-one (21)
days to read and review the terms of this Settlement Agreement and General Release, that Executive
has been advised to review the Agreement with counsel of Executive’s choice, and that Executive is
voluntarily entering into this Settlement Agreement and General Release with full knowledge of its
respective provisions and effects. Executive acknowledges that Executive has seven (7) days
following Executive’s execution of this Settlement Agreement and General Release within which to
revoke it at which point the Company will have no obligation to make any payments to Executive (if
no election is made, such date is referred to as the “Effective Date”). If Executive elects to
revoke acceptance of this Settlement Agreement and General Release, Executive must do so within
seven (7) days of executing it by delivering a letter of revocation to Xxxxxx X. Xxxxx.
7. Non-Admission. This Settlement Agreement and General Release shall not be
construed as an admission by either party any other wrongdoing or liability of whatever nature.
Both parties expressly denies any wrongdoing with respect to the Executive’s employment with the
Company and the Subsidiary and specifically deny any liability whatsoever for any damages, injuries
or other claims, which could be claimed by the other party.
8. Entire Agreement. This Settlement Agreement and General Release contains the sole
and the entire agreement between Executive, the Company, and the Subsidiary and completely and
fully supersedes and replaces any and all prior contracts, agreements, discussions,
representations, negotiations, understandings and any other communications between the parties
pertaining to the subject matter hereof. Executive represents and acknowledges, in executing this
Settlement Agreement and General Release, that Executive has not relied upon any representation or
statement not set forth in this Settlement Agreement and General Release made by the Company, the
Subsidiary or their counsel or representatives with regard to the subject matter of this Settlement
Agreement and General Release. No other promises or agreements shall be binding unless in writing,
signed by the parties hereto, and expressly stated to represent an amendment to this Settlement
Agreement and General Release.
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9. Successors and Assigns. Executive, the Company and the Subsidiary are bound by
this Settlement Agreement and General Release. Executive agrees that he has executed the releases
contained in this Settlement Agreement and General Release on his own behalf, and also on behalf of
his dependents, heirs, agents, executors, legal representatives, successors and assigns. Those who
succeed to Executive’s rights and responsibilities, such as Executive’s dependents, heirs, agents,
executors, legal representatives, successors and assigns are also bound and this Settlement
Agreement and General Release also inures to their benefit. This Settlement Agreement and General
Release is made for the benefit of the Company, the Subsidiary and all who succeed to their rights
and responsibilities, such as any successors and/or assigns.
10. No Assignment. Executive further represents and warrants that Executive has not
heretofore assigned or transferred to any other person or entity any right to receive or claim for
any attorneys’ fees in connection with this matter.
11. Full Knowledge of Terms. Executive hereby represents and warrants that, prior to
executing this Settlement Agreement and General Release, Executive has had the opportunity to fully
discuss its meaning and effect with Executive’s attorneys, and that Executive fully understands and
comprehends the meaning of each of the provisions of this Settlement Agreement and General Release
and that Executive has entered into this Settlement Agreement and General Release voluntarily.
12. Severability. Executive, Company and Subsidiary agree that if any court declares
any portion of this Settlement Agreement and General Release unenforceable, the remaining portions
shall be fully enforceable.
13. Counterparts. This Settlement Agreement and General Release may executed in
counterparts.
14. Governing Law and Venue. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida, both substantive and remedial.
Executive agrees that this Agreement and any controversies of any nature whatsoever arising under
or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of
Miami-Dade County, Florida, and Miami-Dade County, Florida shall be the exclusive jurisdiction and
venue for any disputes, actions or lawsuits arising out of or relating to this Agreement or the
transactions contemplated hereby. Any breach of any term or condition of this Agreement (whether
arising before or after the execution of this Agreement) shall be deemed to be a breach occurring
in the State of Florida by virtue of a failure to perform an act required to be performed in the
State of Florida, and Executive irrevocably and expressly agrees to submit to the jurisdiction of
the courts of Miami-Dade County, Florida for the purpose of resolving any disputes among the
parties relating to this Agreement or the transactions contemplated hereby. Executive irrevocably
waives, to the fullest extent permitted by law, any objection which they may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement, or any judgment entered by any court in respect hereof, brought in Miami-Dade County,
Florida, and further irrevocably waives any claim that any suit, action or proceeding brought in
Miami-Dade County, Florida has been brought in an inconvenient forum.
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15. Prevailing Party. A prevailing party shall be entitled to any attorneys’ fees
and court costs incurred in enforcing this Agreement or in defending any claim brought in violation
hereof.
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IN WITNESS WHEREOF, Executive, Company and Subsidiary each acknowledge that the terms of this
Settlement Agreement and General Release are contractual, that they are acting of their own free
will, that they have had a sufficient opportunity to read and review the terms of this Settlement
Agreement and General Release, they have each had the opportunity to consult their respective
counsel, and that they have voluntarily caused the execution of this Settlement Agreement and
General Release as of the day and year set forth below:
| EXEGENICS, INC. | ||
| /s/ Xxxxxx Xxxxx | ||
| Name: Xxxxxx X. Xxxxx Title: Executive Vice President — Administration |
||
| Date: May 11, 2007 | ||
| ACUITY PHARMACEUTICALS, LLC | ||
| /s/ Xxxxxx Xxxxx | ||
XXXX X. XXXXX, PH.D.
|
Name: Xxxxxx X. Xxxxx | |
| Title: Executive Vice President — Administration | ||
Date: May 11, 2007
|
Date: May 11, 2007 |
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SCHEDULE 1
RELOCATION EXPENSES
RELOCATION EXPENSES
Xxxx Xxxxx Miami Relocation Expenses Incurred:
• |
Xxxxxx Trinity School non-refundable deposit | $ | 2,500 | |||
• |
Wachovia Mortgage Corp. Appraisal | $ | 450 | |||
• |
Wachovia Mortgage Corp Loan Application Fee | $ | 125 | |||
• |
Coldwell Banker Real Estate Home Purchase Deposit | $ | 60,000 | |||
• |
Milan Kitchens Design Consultancy | $ | 700 | |||
• |
MZ Designs Contracting Consultancy | $ | 750 | |||
• |
Xxxxxx Xxxxxxxx Attorney Real Estate Miami | $ | 600 | |||
TOTAL
|
$ | 65,125 |
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EQUITY AWARDS AND VESTING SCHEDULE
Shares Held
| • | 1,687,261 shares of Company Common Stock. | ||
| • | 5,189 shares of Company Series C Preferred Stock (convertible into 518,900 shares of Company Common Stock) |
Share Options Held (as vested through May 31, 2008
| • | An Option to purchase 7,317 shares of Company Series C Preferred Stock (convertible into 731,700 shares of Company Common Stock) for a per share exercise price of $0.32 per share. | ||
| • | An Option to purchase 430,722 shares of Company Common Stock for a per share exercise price of $0.04 per share. | ||
| • | An Option to purchase 225,740 shares of Company Common Stock for a per share exercise price of $0.04 per share. | ||
| • | An Option to purchase 1,054,102 shares of Company Common Stock for a per share exercise price of $0.04 per share. | ||
| • | An Option to purchase 194,603 shares of Company Common Stock for a per share exercise price of $0.05 per share. | ||
| • | An Option to purchase 181,629 shares of Company Common Stock for a per share exercise price of $0.05 per share. |
Warrants Held
| • | A warrant to purchase 64,868 shares of Company Common Stock for a per share exercise price of $0.0385. | ||
| • | A warrant to purchase 68,852 shares of Company Common Stock for a per share exercise price of $0.6728. | ||
| • | A warrant to purchase 68,852 shares of Company Common Stock for a per share exercise price of $0.8473. | ||
| • | A warrant to purchase 68,852 shares of Company Common Stock for a per share exercise price of $1.0466. |
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