Telephone: (609)228-8202 Facsimile: (609)228-8220
Exhibit 99.6
| Telephone: (000)000-0000 Facsimile: (000)000-0000 |
PERSONAL & CONFIDENTIAL
March , 2009
Xxxxx X. Xxxxxx
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0
Dear Xxxxx,
This letter (“Letter Agreement”) sets out the amendments we agreed to make to the terms of your
employment with NUCRYST Pharmaceuticals Corp. (“NUCRYST”) that are set forth in our Offer of
Employment dated February 1, 2006 and accepted by you on February 2, 2006, as may be amended from
time to time (the “Terms of Employment”).
Capitalized terms used and not otherwise defined herein shall have the meaning ascribed to such
term in the Terms of Employment.
Effective as of the date of this Letter Agreement, in consideration of the mutual covenants
contained herein and other good and valuable consideration (the receipt and sufficiency of which is
hereby irrevocably acknowledged), we agree to amend the Terms of Employment as follows:
1. Retention Period Bonus. If you are employed by NUCRYST on December 31, 2009, you shall
be entitled to receive a retention bonus in the amount of One Hundred Thousand Dollars ($100,000)
(the “Retention Bonus”), to be paid in a lump sum on the next regular pay date after December 31,
2009.
2. Severance. If your employment is terminated by NUCRYST for any reason other than Cause,
or your death or disability, NUCRYST shall pay to you:
| (a) | severance in an amount equal to 12 months of your Base Salary at the rate in effect on the date of termination (“Termination Date”); | ||
| (b) | an amount equal to the product obtained by multiplying (A) your target incentive Annual Award for the year of termination under the NUCRYST Employee Incentive Program (which target Annual Award shall, for this purpose, be deemed to be no less than 40% of your annualized Base Salary) times (B) a fraction, the numerator of which is the number of days you were employed hereunder during the year of termination, and the denominator of which is 365; and | ||
| (c) | any Annual Award under the NUCRYST Employee Incentive Program earned during the year prior to the year of termination that has not yet been paid as of the Termination Date; |
in a lump sum, less applicable taxes and withholdings, within 7 days following the date upon which
you provide an executed irrevocable general release in a form satisfactory to NUCRYST acting
reasonably; provided, however, that the release of claims in favour of NUCRYST and its
subsidiaries shall not apply to: (a) any rights to indemnification you may have pursuant to the
Indemnity Agreement between you and
1
NUCRYST dated February 2, 2006 in connection with your employment with NUCRYST or any of its
subsidiaries (the “Indemnity Agreement”); and (b) any rights as an insured in connection with your
service as an officer of NUCRYST or any of its subsidiaries under any directors and officers
insurance policy which from time to time may be maintained by or on behalf of NUCRYST or under
which directors and officers of NUCRYST are insured. For the purposes of this Letter Agreement,
“Cause” shall mean (i) any material breach by you of any other written agreement between you and
NUCRYST including, without limitation, the confidentiality agreement (the “Confidentiality
Agreement”) you entered into with NUCRYST (ii) any material breach or violation by you of any
policy, standard or regulation of NUCRYST or any of its affiliates; (iii) an act or omission by you
as a result of which you are charged with a criminal offence involving dishonesty, breach of trust
or moral turpitude; (iv) your conviction of, or entry of a plea of “guilty” to a crime that
constitutes an indictable offence and/or may discredit NUCRYST or any of its affiliates; (v) theft,
fraud, misappropriation, willful neglect or misconduct, or material dishonesty by you involving the
property or affairs of NUCRYST or any of its affiliates; (vi) your chronic absenteeism; (vii) your
lack of performance due to chronic alcoholism or other form of substance abuse; (viii) your willful
and unjustified refusal to perform your duties; or (ix) your refusal to carry out the reasonable
requests of the President and/or Chief Executive Officer of NUCRYST; provided, however,
that NUCRYST shall provide you with ten (10) days’ written notice and opportunity to cure prior to
a termination based on clause (i), (ii), (vi), (vii),(viii) or (ix) to the extent capable of being
cured.
3. Constructive Termination Without Cause. In the event that a Constructive Termination
Without Cause occurs, you shall have the same entitlements as provided under Section 1 for a
termination by the NUCRYST without Cause. As used herein, “Constructive Termination Without Cause”
shall mean a termination by you of your employment following the occurrence of any one or more of
the following events (with respect to which you do not provide your express prior written consent),
and with respect to which you have provided written notice to NUCRYST of the occurrence of the
event within 20 days of the initial existence of the event and NUCRYST has not fully cured the
basis for such termination within 30 days following its receipt of such notice: (a) any material
breach of this Letter Agreement and/or the Terms of Employment by NUCRYST or of a material term of,
or representation in, the Indemnity Agreement; (b) a relocation of your principal office and place
of employment to a location that is more than 00 xxxxxxxxxx xxxx Xxxxxxxx, Xxxxxxx; (c) a removal
from or failure to reappoint you to your current position of Vice President, General Counsel and
Corporate Secretary; (c) a reduction in your Base Salary in effect prior to the reduction or change
in your hours of work to less than full-time hours; and (d) a material diminution in your
responsibilities, authority, title, position, status, or duties.
4. Termination Without Cause during the Retention Period. If, during the period commencing
on the Effective Date and ending on December 31, 2009, (a) you are terminated without Cause as
described in Section 2; or (b) a Constructive Termination Without Cause occurs; then, you shall be
entitled to receive payment of the Retention Bonus in addition to the severance benefits separately
provided and described in Sections 2 and 3. The Retention Bonus shall be paid in a lump sum, less
applicable taxes and withholdings, at the same time as the applicable severance benefits.
5. No Other Payments and Continuing Obligations. Other than set out herein and in the
Indemnity Agreement, the Terms of Employment, any entitlements you may have, if any, under the
NUCRYST Pharmaceuticals Corp. 1998 Equity Incentive Plan, as amended, and under the Westaim Bonus
Appreciation Unit Plan, the payments referred to in herein constitute your complete entitlement and
NUCRYST’s complete obligation to you whatsoever with respect to the cessation of your employment,
whether at common law, statute or otherwise. Upon any termination of your employment or the Terms
of Employment, you agree and acknowledge that you will abide by the provisions of the
Confidentiality Agreement in accordance with its terms. In addition, upon any termination of your
employment or the Terms of Employment, you covenant and agree to (a) return all property of NUCRYST
which is in your possession or under your control; (b) provide reasonable assistance at a
reasonable cost to NUCRYST in connection with any business matters in which you were engaged during
your employment.
6. No Mitigation. In the event a Constructive Termination Without Cause occurs or your
employment is terminated for any reason other than Cause, or your death or disability, you shall be
under no obligation to seek other employment or otherwise mitigate the obligations of NUCRYST under
this Letter Agreement. Any amounts due under Sections 1, 2, 3 or 4 of this Letter Agreement are
considered to be reasonable by NUCRYST and are not in the nature of a penalty.
2
7. 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.
8. 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.
9. 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.
10. Entire Agreement. Except as amended herein, all other Terms of Employment shall
continue in full force and effect including, without limitation, the Confidentiality Agreement
signed by you in favor of NUCRYST and the Indemnity Agreement.
11. 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.
12. 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.
13. 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,
| Per: | ||||
| Xxxxx X. Xxxxx | ||||
| Interim President & CEO Chief Financial Officer |
||||
The foregoing is hereby agreed to this day of March, 2009.
3
