exv10w46



 




Exhibit
10.46








PERSONAL & CONFIDENTIAL



November 16, 2007




David C. McDowell

11 Palomino Drive

Carlisle, Ontario LOR 1H3




Dear David,




Re:   Revised Terms of Employment




This letter (“Letter Agreement”) sets out the amendments we agreed to make to the terms of your
employment with NUCRYST Pharmaceuticals Corp. (“NUCRYST”) that were set forth in our Revised Offer
of Employment dated June 15, 2005 and accepted by you on June 19, 2005, as previously amended (the
“Terms of Employment”). Accordingly, effective September 1, 2007, we agree to amend the Terms of
Employment as follows:




1.     Base Salary.     CDN $240,000 per annum, payable in arrears in equal semi-monthly
installments.



2.     Additional Employment Perquisite Allowance.   NUCRYST will pay you an annual
allowance in the amount of $20,000, payable in the same manner as the Base Salary, in lieu of
perquisites and in place of any further reimbursement for relocation expenses or living expenses
incurred by you to live in the Edmonton/Fort Saskatchewan Alberta area. The perquisite allowance
will continue only for so long as your office is located in Fort Saskatchewan, Alberta and will be
discontinued if the location of your office is moved.



3.     Severance.   If your employment is terminated by NUCRYST for any reason other than
Cause, or your death or disability, severance will be paid to you in an amount equal to twelve
months of Base Salary, less applicable taxes and withholdings, payable in a lump sum within seven
(7) days following the date upon which you provide an executed irrevocable release of all claims
against NUCRYST and its subsidiaries in a form satisfactory to NUCRYST. For the purposes of this
Letter Agreement, “Cause” includes but is not limited to: a determination by the President of
NUCRYST, acting reasonably, that any of the following events has occurred: (i) any willful and
continued failure on your part to faithfully and professionally perform your duties with NUCRYST;
(ii) any material breach or violation by you of any policy, standard or regulation of NUCRYST;
(iii) any dishonest, unethical, fraudulent, or illegal conduct by you involving the property or
affairs or NUCRYST or the carrying out or your duties or which, in the reasonable opinion of the
President of NUCRYST is injurious to NUCRYST or its affiliates or your ability to perform your
duties; or (iv) your conviction of a crime or if you enter a plea of “guilty” to a criminal offense
which, in the reasonable opinion of the President of NUCRYST, is injurious to NUCRYST or its
affiliates or your ability to perform your duties; or (iv) any material breach by you of any other
written agreement between NUCRYST and you including, without limitation, the confidentiality
agreement you entered into with NUCRYST.



 









 





4.     Severability.   Any term or provision of this Letter Agreement which is held invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Letter Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Letter Agreement in any other jurisdiction.



5.     Enurement.   This Letter Agreement shall be binding upon and enure to the benefit
of your heirs, administrators, executors and legal representatives and shall be binding upon and
enure to the benefit of NUCRYST and its subsidiaries. You shall not assign any of your rights
and/or obligations under this Letter Agreement.



6.     Waiver.   A waiver by either party of any of the terms or conditions of this
Letter Agreement shall not be deemed or construed to be a waiver of such term or condition for the
future, or of any subsequent breach thereof.



7.     Entire Agreement.   Except as amended herein, all other Terms of Employment shall
continue in full force and effect including, without limitation, the employee confidentiality
agreement signed by you in favour of NUCRYST.



8.     Modification.   This Letter Agreement may not be amended, modified, changed or
discharged in any respect except as agreed in writing and signed by both parties.



9.     Governing Law.   This Letter Agreement shall be governed by and construed in
accordance with the laws of the Province of Alberta. Both parties hereby submit to the exclusive
jurisdiction of the Courts of the Province of Alberta.



10.     Independent Legal Advice.   You declare and represent that you have carefully
read and fully understand the terms and provisions of this Letter Agreement, that you have been
given the opportunity to obtain independent legal advice about it by a lawyer of your own choosing,
and that you knowingly and voluntarily accept the terms of this Letter Agreement.



This Letter Agreement shall be considered properly executed by any party if executed and
transmitted by facsimile to the other party. Any party sending a facsimile transmission as herein
provided shall promptly forward an originally executed copy of the Letter Agreement by delivery to
the other party.



If you accept the terms of this Letter Agreement, please execute the duplicate copy of this Letter
Agreement and deliver it back to me.



Sincerely,




	 	 	 	 	 
	NUCRYST Pharmaceuticals Corp.

 	 	 
	Per: /s/ Thomas E. Gardner
 	 	 
	Thomas E. Gardner 	 	 
	President & CEO
Chairman of the Board 	 	 
	 




The foregoing is hereby agreed to this 16th day of November, 2007.



	 	 	 	 	 
	 	 	 
	/s/ David C. McDowell
 	 	 
	DAVID C. MCDOWELL 	 	 
	 	 	 




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