Exhibit 10.7
Gillis
Separation Agreement
CONFIDENTIAL SEPARATION AGREEMENT AND GENERAL RELEASE
This CONFIDENTIAL SEPARATION
AGREEMENT AND GENERAL RELEASE (this “Agreement”) is
entered into as of this 22nd day of August 2007, by and
between Scott H. Gillis (hereinafter “MR. GILLIS”),
NUCRYST Pharmaceuticals Inc., a Delaware Corporation, and NUCRYST
Pharmaceuticals Corp., an Alberta corporation (hereinafter
collectively referred to as “NUCRYST”).
WHEREAS, MR. GILLIS has been employed
by NUCRYST in the Commonwealth of Massachusetts pursuant to that
certain Employment Agreement (the “Employment
Agreement”), dated as of the 6 th day of
December 1999, made by and between MR. GILLIS and Westaim
Biomedical Inc., the predecessor corporation to NUCRYST; and
WHEREAS, MR. GILLIS executed an
Employee Confidentiality Agreement (the “Confidentiality
Agreement”), dated as of the 6th day of December 1999,
made by and between MR. GILLIS and Westaim Biomedical Inc., the
predecessor corporation to NUCRYST; and
WHEREAS, both the Employment
Agreement and the Confidentiality Agreement contain post-employment
restrictions; and
WHEREAS, NUCRYST has decided to make
a management and board leadership change, and NUCRYST and MR.
GILLIS desire to terminate amicably MR. GILLIS’S employment
with NUCRYST and MR. GILLIS wishes to resign from the board of
directors as part of this change in strategic direction; and
WHEREAS, MR. GILLIS is entitled to
certain amounts and benefits provided in his Employment Agreement
upon the termination of his employment in the absence of this
Agreement; and
WHEREAS, in this Agreement, in
consideration of the mutual promises contained herein, NUCRYST has
offered MR. GILLIS certain separation payments and benefits in lieu
of, and greater than, the amounts and benefits provided under the
Employment Agreement;
IT IS HEREBY AGREED by and between
MR. GILLIS and NUCRYST as follows:
1. The following provisions
describe the termination of MR. GILLIS’S employment with
NUCRYST and the transition of his duties and
responsibilities:
a. MR.
GILLIS acknowledges and agrees that his employment with NUCRYST
will be permanently and irrevocably severed including, but not
limited to, resigning from the board of directors of NUCRYST,
effective August 22, 2007 (“Termination Date”),
and that NUCRYST has no obligation, contractual or otherwise, to
hire, rehire or re-employ MR. GILLIS in the future. The Termination
Date shall be the date of the “qualifying event” under
the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”) and, except as detailed in this Agreement,
MR. GILLIS’S eligibility to participate in NUCRYST’S
benefits programs ends on the Termination Date. MR. GILLIS will
receive wages for all work performed by him from the last pay
period prior to August 22, 2007 through the Termination Date,
and all unused vacation pay, if any, less any applicable payroll
withholdings, in a paycheck to be issued to him on the next regular
pay date on or after his Termination Date. MR. GILLIS’S
rights and obligations with regard to any vested Options and/or
vested Restricted Stock Options he may have as of the Termination
Date, including his right to exercise any of those vested
Options
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and/or
Restricted Stock Options after the Termination Date, shall be
governed by the terms and conditions set forth in: the 1999 Stock
Option Agreement, executed by MR. GILLIS on December 6, 1999
(the “1999 Option Agreement”); the 2002 letter
amendment to the 1999 Option Agreement, executed by MR. GILLIS on
May 20, 2002 (the “Amendment to the 1999 Option
Agreement”); the 2002 Stock Option Agreement, executed by MR.
GILLIS on February 6, 2002 (the “2002 Option
Agreement”); the 2003 Stock Option Agreement, executed by MR.
GILLIS on February 28, 2003 (the “2003 Option
Agreement”); the 2007 Stock Option Award Agreement, executed
by MR. GILLIS on May 18, 2007 (the “2007 Option
Agreement”); and, the Restricted Stock Unit Award Agreement,
executed by MR. GILLIS on May 18, 2007 (the “RSU
Agreement”). For the purposes of MR. GILLIS’S right to
exercise any of those vested Options and/or Restricted Stock
Options, the provisions relating to termination for reasons other
than Just Cause shall apply.
b. MR.
GILLIS agrees that for the six (6) month period of time from
his Termination Date on August 22, 2007 to February 22,
2008 (the “Transition Period”), he will use good faith,
reasonable efforts to achieve an orderly transition of his duties,
that he will cooperate with NUCRYST’s transition efforts and
that he will make himself available as requested by NUCRYST for
consultation with NUCRYST regarding matters which arise out of or
relate to his duties and responsibilities with NUCRYST.
2. MR. GILLIS, on behalf of
himself, his heirs, executors, administrators, and/or assigns, for
and in consideration of the undertakings of NUCRYST set forth
herein, and intending to be legally bound, does hereby release and
forever discharge NUCRYST Pharmaceuticals Corp., Westaim Biomedical
Inc. and The Westaim Corporation, together with their parent and
subsidiaries, affiliates, predecessor and successor corporations
and business
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entities, joint ventures, and partners, past, present and future,
and its and their agents, directors, officers, employees,
stockholders, investors, insurers and reinsurers, assigns,
representatives, and attorneys, past, present and future, and its
and their assigns, heirs, executors, and administrators, past,
present, and future (collectively, the “Releasees”), of
and from any and all legally waivable causes of action, suits,
debts, complaints, claims and demands whatsoever in law or in
equity, whether known or unknown, suspected or unsuspected, which
MR. GILLIS, or his heirs, executors, administrators, and assigns,
ever had or now has against each or any of the Releasees, from the
beginning of time to the date of execution of this Agreement,
including, without limitation, any and all claims relating to MR.
GILLIS’S employment with NUCRYST or the termination of that
employment, including, without limitation, claims under the Age
Discrimination in Employment Act, the Older Workers Benefit
Protection Act, Title VII of the Civil Rights Act of 1964,
Section 1981 of the Civil Rights Act of 1870, the Americans
with Disabilities Act, the Family Medical Leave Act, the Employee
Retirement Income Security Act, M.G.L. c. 151B, and any and all
other federal, state or local statutory or common law claims, now
or hereafter recognized, including but not limited to, any claims
for economic loss, compensatory damages, punitive damages,
liquidated damages, attorneys’ fees, expenses and costs. MR.
GILLIS represents that he does not have any lawsuits, claims, or
charges pending against any of the Releasees.
3. MR. GILLIS acknowledges and
agrees that in the absence of this Agreement, upon the Termination
Date he would be solely entitled to the amounts and benefits
provided for under the terms of the Employment Agreement. In lieu
of the amounts and benefits provided under the Employment
Agreement, and in full consideration of MR. GILLIS’s
execution of this Agreement, and his agreement to be legally bound
by its terms, NUCRYST agrees to make the
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following payments and fulfill the following promises after receipt
by NUCRYST of MR. GILLIS’S signature on this Agreement, and
after the expiration of the revocation period set forth in
paragraph 13(e) when this Agreement becomes final and
binding:
(a) pay
MR. GILLIS a lump sum payment of $295,000.00, less applicable tax
withholding and deductions within thirty (30) days after the
expiration of the revocation period set forth in paragraph
13(e);
(b) pay
MR. GILLIS the lump sum amount of $150,000.00, less applicable tax
withholding and deductions, within thirty days after the expiration
of the Transition Period provided that MR. GILLIS fulfills his
promises and obligations as set forth in paragraph 2(b) herein with
regard to the Transition Period, as well his other undertakings in
this Agreement, including but not limited to his continuing
obligation to abide by Sections 9 and 10 of the Employment
Agreement and the post-employment restrictions contained in the
Confidentiality Agreement, and his obligations under paragraph 10
of this Agreement; MR. GILLIS understands and agrees that he will
not be entitled to receive the payment set forth in this paragraph
3(b) if he fails to fulfill his promises and obligations as set
forth in paragraph 2(b) herein with regard to the Transition
Period, as well his other undertakings in this Agreement, including
but not limited to his continuing obligation to abide by
Sections 9 and 10 of the Employment Agreement and the
post-employment restrictions contained in the Confidentiality
Agreement, and his obligations under paragraph 10 of this
Agreement;
(c) reimburse
MR. GILLIS for the after-tax cost of the COBRA premium payments
incurred by MR. GILLIS in connection with his group medical
insurance coverage during the 18-month period following the
Termination Date; provided that MR. GILLIS elects to continue his
group medical insurance coverage pursuant to COBRA and executes
this
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Agreement; and provided, further, that NUCRYST’s obligation
to reimburse MR. GILLIS shall cease as of the date MR. GILLIS
becomes eligible to receive health insurance coverage from another
employer or recipient of MR. GILLIS’s services (and provided,
further, that such entitlement shall be determined without regard
to any individual waivers or other similar arrangements); NUCRYST
will make such reimbursement upon proof of payment;
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