Employment Agreement
Exhibit 10.25
THIS EMPLOYMENT AGREEMENT (the “Agreement”) is entered into by and between Xxxxx Xxxxxxx (the
“Executive”) and OncoGenex Technologies Inc., a Canadian corporation (the “Employer”) and OncoGenex
Pharmaceuticals, Inc., a Washington corporation (the “Company”) as of November 4, 2009 (the
“Effective Date”). This Agreement supercedes the Executive’s Employment Agreement with the
Employer, dated December 21, 2001, the Employment Amending Agreement with the Employer, dated
August 10, 2005, and any other prior employment-related agreements (the “Prior Agreements”).
1. Duties and Scope of Employment.
For the term of this Agreement (“Employment”), the Employer agrees to employ the Executive in
the position of President and Chief Executive Officer and the Company agrees to appoint the
Executive in the position of President and Chief Executive Officer of the Company. The Executive
shall report directly to the Board of Directors of the Company (the “Board”). The Executive shall
have such duties, authority and responsibilities that are commensurate with his being a senior
executive officer of the Company and the Employer. During his employment, Executive will perform
his duties faithfully and to the best of his ability and will, except as provided below, devote his
full business efforts and time to the Employer and the Company. For the duration of the
Executive’s Employment term, Executive agrees not to actively engage in any other employment,
occupation or consulting activity for any direct or indirect remuneration without the prior written
approval of the Board, such approval not to be unreasonably withheld. It is understood and agreed
that Executive will not be precluded from serving on boards of directors and advisory boards,
provided that such activities do not materially adversely affect Executive’s ability to perform and
discharge his duties to the Company and the Employer. The Executive’s primary work place shall be
at the Company’s Canadian office in Vancouver, British Columbia.
2. Cash and Incentive Compensation.
(a) Salary. The Employer shall pay the Executive as compensation for his services a base
salary at a gross annual rate of not less than Cdn.$345,000. Such salary shall be payable in
accordance with the Employer’s standard payroll procedures. The annual compensation specified in
this Section 2(a), together with any increases in such compensation that the Employer may grant
from time to time, is referred to in this Agreement as “Base Compensation.”
(b) Incentive Bonuses. The Executive shall be eligible to receive a discretionary annual
fiscal year incentive bonus (“Bonus”) that the Board or Compensation Committee of the Board (the
“Committee”) shall determine and award (through the Employer) in its sole discretion. Initially,
the Executive shall be eligible to receive a Bonus constituting up to 40% of the Executive’s Base
Compensation. Such percentage may be modified by the Board or the Committee in its discretion
from time to time. The Bonus will be based upon the achievement of specific milestones that will
be determined by the Board and /or the Committee and confirmed to the Executive no later than
ninety (90) days after the start of each fiscal year.
Payment for each year’s Bonus, if awarded, shall be made to the Executive no later than the
date on which Bonuses are paid to the other senior executive officers of the Company. The Board
or the Committee may, in its sole discretion, determine not to award a Bonus or to award a Bonus
at less than maximum eligibility. The Executive acknowledges that a Bonus is neither required nor
guaranteed by this Agreement.
(c) Equity Terms. During the Executive’s Employment, at the discretion of the Committee, the
Executive shall be entitled to participate in the Company’s equity compensation plans, as in
effect from time to time, and the Executive shall be eligible to receive grants of Company equity
(“Compensatory Equity”), as determined by the Committee, in its discretion from time to time.
(d) Employee Benefits. During the Executive’s Employment, the Executive will be entitled to
participate in the employee benefit plans of general applicability to other employees of the
Employer, as in effect from time to time, including, without limitation, the Employer’s group
medical, dental, vision, disability, life insurance, director and officer liability insurance and
flexible-spending account plans. The Employer reserves the right to cancel or change the benefit
plans and programs it offers to its employees at any time; provided that the Employer agrees to
maintain benefit plans and programs that are no less beneficial in the aggregate than the benefit
plans and programs of general applicability to employees of the Company, as in effect from time to
time.
(e) “Service” Definition. For purposes of Section 3(b) of this Agreement, “Service” shall
mean service by the Executive as an employee and/or consultant of the Employer (or any subsidiary
or parent or affiliated entity of the Employer) and service by the Executive as an officer of the
Company.
3. Vacation and Indemnification.
(a) Vacation. The Executive will be eligible for paid vacation in accordance with the
Employer’s vacation policy. Under the Employer’s current vacation policy, the Executive is
eligible for twenty (20) days per year of paid vacation. Unused vacation may not be carried over
for more then twelve months after the completion of each fiscal year.
(b) Indemnification. The Company and the Employer shall indemnify the Executive to the
maximum extent permitted by applicable law and the Company’s certificate of incorporation and
bylaws with respect to the Executive’s Service. During the Executive’s Employment, the Company
shall maintain officers’ liability insurance for the Executive’s benefit on terms and conditions
no less favorable than the terms and conditions generally applicable to the Company’s other senior
executive officers. The Employer’s and the Company’s obligations under this Section 3(b) shall
survive termination of the Executive’s Service and also termination or expiration of this
Agreement.
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4. Business Expenses.
During his Employment, the Executive shall be authorized to incur necessary and reasonable
travel, entertainment and other business expenses in connection with his duties
hereunder. The Employer shall promptly reimburse the Executive for such expenses upon
presentation of appropriate supporting documentation, all in accordance with the Company’s
generally applicable policies.
5. Term of Employment.
(a) Termination of Employment. Subject to the terms and conditions described below, the
Employer may terminate the Executive’s Employment with or without Cause (as defined below), by
giving the Executive two (2) months advance notice in writing. The Executive may terminate his
Employment by giving the Employer two (2) months advance notice in writing. The Executive’s
Employment shall terminate automatically in the event of his death.
(b) Rights Upon Termination. Upon the termination of the Executive’s Employment for any
reason (including death or Disability (as defined below)), the Executive shall be entitled to the
compensation, benefits and reimbursements described in this Agreement through the effective date
of the termination (the “Termination Date”), and the Employer shall make the following payments to
the Executive (or his beneficiary) within 10 business days following the Termination Date: (i) all
unpaid salary and unpaid vacation accrued through the Termination Date, (ii) any accrued, unpaid
bonuses (provided that any such bonus has been awarded by the Board or the Committee, in
accordance with the terms of any applicable plan, has been earned by the Executive and is not
subject to any vesting or other similar requirement) for any fiscal year of the Company ended
prior to the Termination Date and (iii) any unreimbursed business expenses. The Executive may
also be eligible for other post-Employment payments and benefits as provided in this Agreement or
pursuant to other agreements (other than the Prior Agreements) or plans with the Employer or the
Company. Upon the Termination Date, the Executive shall have no further rights to receive
compensation or benefits from the Employer or the Company except as set forth in Section 6 and
pursuant to the terms of any benefit plans (including without limitation any equity compensation
plans) of the Employer or the Company in which the Executive is a participant.
6. Termination Benefits.
(a) Severance Pay. If there is an Involuntary Termination (as defined below) of the
Executive’s Employment, then, subject to the Executive’s execution, delivery and non-revocation of
a Release (defined below) within the time period described below, following the Executive’s
Termination Date, the Employer shall pay the Executive a single lump sum of cash in an amount
equal to the sum of eighteen (18) months (the “Severance Period”) of the Executive’s then annual
Base Compensation (not giving effect to any reduction in Base Compensation made in connection with
such Involuntary Termination or giving rise to Good Reason). The cash lump sum amount payable
under this Section 6(a) shall be made to the Executive on the first payroll date in the month
following the month containing the Release Deadline. The Executive shall also receive the
benefits provided in Sections 6(b) and 6(c), and all such payments and benefits shall not be
subject to mitigation or offset (except as specified in Section 6(b)). In order to be entitled to
receive the severance described in this Section 6(a) (including the benefits provided in
Sections 6(b), 6(c) and, if applicable, 6(d)), the Executive must execute, deliver and not revoke
the Release within forty-five (45) calendar days following
the Executive’s Termination Date (the date that is forty-five (45) calendar days following
the Executive’s Termination Date is the “Release Deadline”). The Employer shall furnish the
Release to the Executive on the date of his Involuntary Termination. The “Release” shall be a
general release of all litigation and other claims against the Employer, and Company and all
affiliates by the Executive and on Executive’s behalf in a form satisfactory to the Employer.
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(b) Health Insurance. If the Executive is entitled to receive the severance payment in
Section 6(a), then, to the extent that such benefit plans permit, the Executive shall receive
continued entitlement under all of the Employer’s group medical, dental and insurance plans,
excluding short and long term disability plans and pension plans, to which the Executive and his
family are entitled at the Termination Date; such continuation of benefit entitlement shall be for
a period equal to the Severance Period or until the date the Executive becomes employed elsewhere
wherein comparable benefits are provided, whichever date comes first. To the extent the
continuance of a benefit plan, excluding short and long term disability plans and pension plans,
is not permitted, the Employer shall pay to the Executive, no later than thirty (30) days after
the Termination Date, an amount equal to the sum the Executive would be required to pay to receive
comparable benefits for a period equal to the Severance Period (upon timely receipt of invoices
reflecting the cost of premiums for such comparable benefits).
(c) Equity Vesting. Notwithstanding the terms of any equity compensation plan of the Company
or any agreement in connection with a grant of Compensatory Equity, if the Executive is entitled
to receive the payments in Section 6(a), then the time-based vesting restrictions (if any) shall
immediately lapse on an additional number of shares of Company common stock under all of the
Executive’s outstanding Compensatory Equity that is equal to the number of shares that would have
time-vested if the Executive had continued in employment for the number of additional months
following the Termination Date that is equal to the number of months in the Severance Period. The
Executive shall be entitled to exercise any of his Compensatory Equity to the extent vested
pursuant to this Section 6(c) or otherwise for such period as set forth in the terms of that
Compensatory Equity.
(d) Effect of Change in Control. If the Company is subject to a Change in Control (as
defined below) and there is an Involuntary Termination of the Executive’s Employment within the
period beginning three (3) months before and ending twelve (12) months after a Change in Control
(or more than three (3) months prior to a Change in Control but in connection with a Change in
Control), then following the Executive’s Termination Date, the Executive will be entitled to all
benefits described in Sections 6(a), 6(b) and 6(c) of this Agreement subject to the same terms and
conditions and payment dates described above, except that (x) the cash payment amount under
Section 6(a) shall be an amount equal to the sum of twenty-four (24) months of the Executive’s
then annual Base Compensation (not giving effect to any reduction in Base Compensation made in
connection with such Involuntary Termination or giving rise to Good Reason), plus an amount equal
to the sum of twelve (12) months of the Executive’s average monthly Bonus earnings, where such
average is calculated over the twenty-four (24) month period immediately preceding the Executive’s
Termination Date and based on the Executive’s Bonus paid in such 24 month period, (y) the
Executive’s Severance Period under Section 6(b) shall equal twenty-four (24) months and (z)
notwithstanding the terms of any equity compensation plan of the Company or any agreement in
connection with a grant of Compensatory Equity, all vesting restrictions (if any) shall
immediately lapse on all of the Executive’s Compensatory Equity effective as of the
Termination Date. For purposes of the preceding sentence, an Involuntary Termination shall be
deemed to be in connection with a Change in Control if such termination (i) is required by the
merger agreement, purchase agreement or other instrument relating to such Change in Control or
(ii) is made at the express request of the other party (or parties) to the transaction
constituting such Change in Control.
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(e) “Change in Control” Definition. For purposes of this Agreement, “Change in Control” shall
mean the occurrence of any of the following events:
(i) the consummation of a merger or consolidation of the Company with or into another
entity or any other corporate reorganization, if the Company’s stockholders immediately
prior to such merger, consolidation or reorganization cease to directly or indirectly own
immediately after such merger, consolidation or reorganization at least a majority of the
combined voting power of the continuing or surviving entity’s securities (or, if the
continuing or surviving entity is a wholly owned subsidiary of another corporation
immediately following such merger or consolidation, the ultimate parent corporation of such
surviving or resulting corporation) outstanding immediately after such merger, consolidation
or other reorganization;
(ii) the consummation of the sale, transfer or other disposition of all or
substantially all of the Company’s assets (other than (1) to a corporation or other entity
of which at least a majority of its combined voting power is owned directly or indirectly by
the Company, (2) to a corporation or other entity owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their ownership of the
common stock of the Company or (3) to a continuing or surviving entity described in
subsection (i) in connection with a merger, consolidation or corporate reorganization which
does not result in a Change in Control under subsection (i));
(iii) a change in the composition of the Board, as a result of which fewer than
one-half of the incumbent directors are directors who either (1) had been directors of the
Company on the date twenty-four (24) months prior to the date of the event that may
constitute a Change in Control (the “original directors”) or (2) were elected, or nominated
for election, to the Board with the affirmative votes of at least a majority of the
aggregate of the original directors who were still in office at the time of the election or
nomination and the directors whose election or nomination was previously so approved;
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(iv) the consummation of any transaction as a result of which any person becomes the
“beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)), directly or indirectly, of securities of the Company
representing at least thirty-five percent (35%) of the total voting power represented by the
Company’s then outstanding voting securities. For purposes of this subsection, the term
“person” shall have the same meaning as when used in sections 13(d) and 14(d) of the
Exchange Act but shall exclude:
(1) a trustee or other fiduciary holding securities under an employee
benefit plan of the Company or an affiliate of the Company;
(2) a corporation or other entity owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as their
ownership of the common stock of the Company;
(3) the Company; and
(4) a corporation or other entity of which at least a majority of its
combined voting power is owned directly or indirectly by the Company; or
(v) a complete winding up, liquidation or dissolution of the Company.
For purposes of this Section 6(e), a transaction shall not constitute a Change in Control if
its sole purpose is to change the state of the Company’s incorporation or to create a holding
company that will be owned in substantially the same proportions by the persons who held the
Company’s securities immediately before such transactions.
(f) “Cause” Definition. For all purposes under this Agreement, “Cause” shall have the
meaning of cause under the common law of British Columbia, including any of the following
committed by the Executive:
(i) serious misconduct;
(ii) habitual neglect of duty;
(iii) incompetence;
(iv) conduct incompatible with the Executive’s duties or prejudicial to the Company’s
or Employer’s business; or
(v) willful disobedience to the Employer’s orders in a matter of substance.
With respect to an intended dismissal for Cause, the Board shall provide the Executive one
month’s notice of the intended dismissal and, at the same time, shall provide in writing the
reasons for the intended dismissal for Cause. The Executive shall have the option, within that one
month period, of providing a written response to the reasons. The Executive shall continue to
receive the compensation and benefits provided by this Agreement during the one-month period, but
the Employer may, at its option, relieve the Executive of any active duties during that period.
Nothing in this subsection will deprive the Employer of relying on the doctrine of after-acquired
cause should it learn of other conduct amounting to Cause after the dismissal of the Executive.
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(g) “Involuntary Termination” Definition. For all purposes under this Agreement,
“Involuntary Termination” shall mean any of the following: (i) termination of the
Executive’s Employment by the Employer without Cause; (ii) the Executive’s resignation of
Employment for Good Reason; or (iii) termination of the Executive’s Employment by the Employer for
Disability.
(h) “Good Reason” Definition. For all purposes under this Agreement, “Good Reason” shall
mean any of the following that occurs without the Executive’s prior written consent: (i) the
relocation of the Executive’s primary work location by more than forty (40) miles from the current
location of the Company’s Canadian office in Vancouver, British Columbia; (ii) a material
reduction of the Executive’s Base Compensation or Executive’s employee benefits; (iii) any
material reduction or diminution of the Executive’s duties, authority or responsibilities; (iv)
the Employer’s fundamental breach of this Agreement; or (v) the failure of any successor of the
Company to expressly in writing assume the Employer’s and the Company’s obligations under this
Agreement, in each case, provided that the Executive shall have provided the Employer with two (2)
months advance written notice and an opportunity to cure such breach during such two-month period.
(i) “Disability” Definition. For all purposes under this Agreement, “Disability” shall mean
the Executive’s incapacity due to physical or mental illness to perform his full-time duties with
the Company for a continuous period of three (3) months or an aggregate of six (6) months in any
eighteen (18) month period.
(j) No Further Obligations. The Employer’s obligations described in Sections 5 and 6
constitute its full obligations to the Executive in the event of a termination of employment and
the Employer shall have no further obligation to provide notice of dismissal, compensation or
compensation in lieu of notice other than as described in these sections.
7. Non-Solicitation, Non-Compete and Non-Disparagement.
(a) Non-Solicitation. During the period commencing on the date of this Agreement and
continuing until the first anniversary of the Termination Date, the Executive shall not directly
or indirectly, personally or through others, solicit, recruit, or attempt to solicit or recruit
any employee, agent, licensor, content provider, supplier, distributor, customer or partner of the
Company to curtail, cancel or terminate such employment, agency or business relationship that it
has with the Company or its affiliates.
(b) Non-Compete. During the period commencing on the date of this Agreement and continuing
until the first anniversary of the Termination Date, the Executive shall not directly or
indirectly, personally or through others, own, manage, operate, control, participate in, perform
services for, make any investment in, assist, or otherwise carry on, the Company business (such
business, including the business of any subsidiary or parent or affiliated entity of the Company,
is referred to herein as the “Company Business”) or any business that directly competes with the
Company Business (other than in the course of performing duties to the Company or any of its
affiliates as an employee or other service provider). Notwithstanding the foregoing, nothing
contained in this Section 7(b) shall limit or otherwise affect the ability of Executive to own not
more than 1.0% of the outstanding capital stock of any entity that is engaged in a business
competitive with the Company Business,
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provided that such investment is a passive investment and
the Executive is not directly or indirectly involved in the management or operation of such business or otherwise providing
consulting services to such business. For purposes of this Agreement, Company Business shall
include, but shall not be limited to the research and development of the Technology, as defined
herein, and such other business plans as approved by the Board from time to time and which are in
effect on the Termination Date. As used herein, “Technology” means all ideas, concepts, business
and trade names, trademarks, know-how, trade secrets, inventions, improvements, devices, methods,
processes and discoveries, whether patentable or not, and whether or not reduced to writing or
other tangible form or to actual or constructive practice which either: (i) are part of the
technology licensed to the Employer under the UBC Licenses, as defined herein, or (ii) are
otherwise developed or acquired on behalf of or by the Company or any affilate of the Company,
including but not limited to the technology licensed to the Company or any affiliate of the
Company by clients for work to be performed for such clients pursuant to research contracts. As
used herein, “UBC Licenses” means the licenses entered into by the University of British Columbia
and the Employer effective November 1, 2001, September 1, 2002 and April 5, 2005 which define the
terms under which the Employer has acquired an exclusive license to certain technology. It is
understood that the Employer has granted the Company a limited right to use certain technology
licensed under the UBC Licenses solely for the Company to perform work for the Employer.
(c) Confidential Information. Except as required in the good faith opinion of the Executive
in connection with the performance of the Executive’s duties hereunder or as specifically set
forth in this Section 7(c), the Executive shall, in perpetuity, maintain in confidence and shall
not directly, indirectly or otherwise, use, disseminate, disclose or publish, or use for his
benefit or the benefit of any person, firm, corporation or other entity any confidential or
proprietary information or trade secrets of or relating to the Company or any of its affiliates,
including, without limitation, information with respect to the Company’s operations, processes,
products, inventions, business practices, finances, principals, vendors, suppliers, customers,
potential customers, marketing methods, costs, prices, contractual relationships, regulatory
status, business plans, designs, marketing or other business strategies, compensation paid to
employees or other terms of employment, or deliver to any person, firm, corporation or other
entity any document, record, notebook, computer program or similar repository of or containing any
such confidential or proprietary information or trade secrets. The Employer and the Executive
stipulate and agree that as between them the foregoing matters are important, material and
confidential proprietary information and trade secrets and affect the successful conduct of the
businesses of the Company (and any successor or assignee of the Company). Upon termination of the
Executive’s employment with the Employer for any reason, the Executive shall promptly deliver to
the Company all correspondence, drawings, manuals, letters, notes, notebooks, reports, programs,
plans, proposals, financial documents, or any other documents concerning the Company’s customers,
business plans, designs, marketing or other business strategies, products or processes, provided
that the Executive may retain his rolodex, address book and similar information, whether or not
the Company specifically requests it.
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(d) Non-Disparagement. The Executive and the Employer mutually agree not to disparage or
defame, in writing or orally, the other party, and as applicable, its or his services, products,
subsidiaries, parent entity and affiliates, and/or their respective directors, officers,
employees, agents, family members, successors and assigns. This non-disparagement
provision shall not apply to statements made by non-management employees of the Company, so
long as such statements did not originate from and were not induced or encouraged (directly or
indirectly) by an officer, director or management employee of the Company. Notwithstanding the
foregoing, nothing in this Section 7(d) shall limit the ability of the Employer, the Company or
the Executive, as applicable, to provide truthful testimony as required by law or any judicial or
administrative process.
(e) Remedies. Without limiting the right of the Employer and the Company to pursue all other
legal and equitable rights available to the Employer and the Company for violation of the
provisions of Section 7 of this Agreement by Executive, it is agreed that (a) other remedies
cannot fully compensate the Employer and the Company for such a violation, (b) such a violation
will cause the Employer and the Company irreparable harm which may not be adequately compensated
by money damages and (c) the Employer and the Company shall each be entitled to temporary,
preliminary and permanent injunctive or other equitable relief, without proving actual damages or
posting a bond therefore, to prevent a violation, continuing violation or threatened violation of
the provisions of Section 7 of this Agreement.
8. Inventions and Patents.
(a) For purposes of this Agreement, “Inventions” includes, without limitation, information,
inventions, contributions, improvements, ideas, or discoveries, whether protectable or not, and
whether or not conceived or made during work hours. Executive agrees that all Inventions
conceived or made by Executive during the period of employment with Employer belong to the
Company, provided they grow out of Executive’s work with the Employer or the Company or are
related in some manner to the Company Business, including, without limitation, research and
product development, and projected business of the Company or its affiliated companies.
Accordingly, Executive will:
(i) Make adequate written records of such Inventions, which records will be the
Company’s property;
(ii) Assign to the Company or its designee, at the Company’s request, any rights
Executive may have to such Inventions for the U.S. and all foreign countries;
(iii) Waive and agree not to assert any moral rights Executive may have or acquire in
any Inventions and agree to provide written waivers from time to time as requested by the
Company; and
(iv) Assist the Company (at the Company’s expense) in obtaining and maintaining patents
or copyright registrations with respect to such Inventions.
(b) Executive understands and agrees that the Company or its designee will determine, in its
sole and absolute discretion, whether an application for patent will be filed on any Invention
that is the exclusive property of the Company, as set forth above, and whether such an application
will be abandoned prior to issuance of a patent. Employer will pay to Executive, either during or
after the term of this Agreement, the following amounts if Executive is sole inventor, or
Executive’s proportionate share if Executive is joint inventor: $750 upon filing of the initial
application for patent on such Invention; and $1,500 upon
issuance of a patent resulting from such initial patent application, provided Executive is
named as an inventor in the patent.
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(c) Executive further agrees that Executive will promptly disclose in writing to the Company
during the term of Executive’s employment and for one (1) year thereafter, all Inventions whether
developed during the time of such employment or thereafter (whether or not the Company or the
Employer has rights in such Inventions) so that Executive’s rights and the Company’s or the
Employer’s rights, as applicable, in such Inventions can be determined. Except as set forth on
the initialed Exhibit A (List of Inventions) to this Agreement, if any, Executive represents and
warrants that Executive has no Inventions, software, writings or other works of authorship useful
to the Company in the normal course of the Company Business, which were conceived, made or written
prior to the date of this Agreement and which are excluded from the operation of this Agreement.
9. Successors.
(a) Employer’s Successors. This Agreement shall be binding upon any successor (whether
direct or indirect and whether by purchase, lease, merger, consolidation, liquidation or
otherwise) to all or substantially all of the Employer’s business and/or assets. For all purposes
under this Agreement, the term “Employer” shall include any successor to the Employer’s business
and/or assets which becomes bound by this Agreement.
(b) Employee’s Successors. This Agreement and all rights of the Executive hereunder shall
inure to the benefit of, and be enforceable by, the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and legatees.
10. Repayment Provisions.
If the Company is required to prepare an accounting restatement due to its material
noncompliance, as a result of the Executive’s misconduct, with any financial reporting requirement
under United States securities laws, then, and only if Section 304 of the Xxxxxxxx-Xxxxx Act of
2002, or a successor provision, is then in effect, the Employer may require the Executive to
reimburse the Company (or the Employer, as applicable) for (i) any bonus or other incentive-based
or equity-based compensation received by the Executive from the Company (or the Employer, as
applicable) during the 12-month period following the first public issuance or filing with the
Securities Exchange Commission (whichever first occurs) of the financial documents embodying such
financial reporting requirement and (ii) any profits realized from the sale of securities of
Company during such 12-month period.
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11. Miscellaneous Provisions.
(a) Notice. Notices and all other communications contemplated by this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or when mailed by
overnight courier, U.S. registered or certified mail, return receipt requested and postage
prepaid. In the case of the Executive, mailed notices shall be addressed to his at the home
address that he most recently communicated to the Employer in writing. In the case of the
Employer, mailed notices shall be addressed to:
| Attention: | Board of Directors | |||
| c/o: | Suite 400 — 0000 Xxxx Xxxxxxxx | |||
| Xxxxxxxxx, Xxxxxxx Xxxxxxxx | ||||
| XXXXXX, X0X 0X0 | ||||
| Telephone: 000-000-0000 | ||||
| Facsimile: 000-000-0000 |
(b) Modifications and Waivers. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in writing and signed by the
Executive and by an authorized officer of the Employer (other than the Executive). No waiver by
either party of any breach of, or of compliance with, any condition or provision of this Agreement
by the other party shall be considered a waiver of any other condition or provision or of the same
condition or provision at another time.
(c) Whole Agreement. Except for those agreements or plans referenced herein (including
without limitation any employee benefit plans of the Company in which the Executive is a
participant in as of the Effective Date), this Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and supersedes any other agreements,
representations or understandings (whether oral or written and whether express or implied) with
respect to the subject matter hereof. In the event of any conflict in terms between this
Agreement and any other agreement executed by and between the Executive and the Employer, the
terms of this Agreement shall prevail and govern.
(d) Withholding Taxes. All payments made under this Agreement shall be subject to reduction
to reflect taxes or other charges required to be withheld by law.
(e) Reporting Requirements. As the Executive is a Section 16 officer, the Company shall
assist the Executive and facilitate the Executive’s compliance with applicable Section 16
reporting requirements.
(f) Choice of Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the Province of British Columbia (except their
provisions governing the choice of law).
(g) Severability; Blue-Penciling. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of any other
provision hereof, which shall remain in full force and effect. Furthermore, it is the intent,
agreement and understanding of each party hereto that if, in any action before any court or agency
legally empowered to enforce this Agreement, any term, restriction, covenant or promise in this
Agreement is found to be unreasonable and for that or any other reason unenforceable, then such
term, restriction, covenant or promise shall be deemed modified to the minimum extent necessary to
make it enforceable by such court or agency; provided further that any such court or agency shall
have the power to modify such provision, to the extent necessary to make it enforceable (for the
maximum duration and geographic scope permissible), and such provision as so modified shall be
enforced,
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(h) Assignment. The Employer and the Company may assign their respective rights under this
Agreement to any entity that expressly in writing assumes the Employer’s and the Company’s
obligations hereunder in connection with any sale or transfer of all or substantially all of the
Company’s assets to such entity.
(i) Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.
Executive acknowledges that: (i) Executive understands that to the extent that Executive’s
Compensatory Equity, or a portion of the income recognized in connection with Executive’s
Compensatory Equity, is subject to taxation under U.S. federal income tax rules, adverse tax
consequences could apply; (ii) Executive has had adequate opportunity to obtain advice of
independent tax counsel with respect to the tax treatment of Executive’s Compensatory Equity and
all other compensation under this Agreement (including federal, state and provincial, as
applicable); and (iii) individuals who are neither U.S. citizens nor U.S. residents may be subject
to U.S. federal income tax in certain circumstances, for example, where the Executive performs
sufficient personal services in the U.S. such that the Executive has U.S. source income or income
effectively connected with a U.S. trade or business.
| ONCOGENEX TECHNOLOGIES INC. | XXXXX XXXXXXX | |||||||||
By:
|
/s/ XXX XXXXX
|
Signed: | /s/ XXXXX XXXXXXX
|
|||||||
| Its: Director | ||||||||||
| ONCOGENEX PHARMACEUTICALS, INC. | ||||||||||
By:
|
/s/ XXX XXXXX
|
|||||||||
| Its: Director | ||||||||||
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