EXHIBIT 4.2
STOCK OPTION
ASSUMPTION, AMENDING AND
CONFIRMATION AGREEMENT
THIS AGREEMENT made as of the 21
st day of August, 2008.
BETWEEN:
ONCOGENEX PHARMACEUTICALS,
INC. (formerly known as SONUS PHARMACEUTICALS, INC.)
, a corporation existing under the
laws of the State of Delaware
(hereinafter referred to as "
Sonus ")
AND:
ONCOGENEX TECHNOLOGIES
INC. , a corporation
existing under the federal laws of Canada
(hereinafter referred to as "
OncoGenex ")
WHEREAS:
A. OncoGenex
has issued and outstanding options entitling directors, officers,
employees and consultants of OncoGenex to purchase an aggregate of
up to 1,489,047 Common shares (" OncoGenex Common Shares ")
in the capital of OncoGenex (collectively the " OncoGenex
Options ") pursuant to the OncoGenex Amended and Restated Stock
Option Plan (the " OncoGenex Stock Option Plan
");
B. Pursuant
to the OncoGenex Stock Option Plan each of the existing OncoGenex
Options is evidenced by an option agreement between OncoGenex and
the applicable optionee (each an " Option Agreement
");
C. Pursuant
to an arrangement agreement (the " Arrangement Agreement ")
between Sonus and OncoGenex dated as of May 27, 2008, the parties
agreed to seek approval from the court for a statutory plan of
arrangement (as amended prior to the Effective Time, the " Plan
of Arrangement ") under section 192 of the
Canadian Business Corporations
Act pursuant to which
Sonus would acquire all of the issued and outstanding shares and
debentures in the capital of OncoGenex in exchange for shares of
common stock in the capital of Sonus (" Sonus Common Shares
");
D. Under
the Plan of Arrangement, each OncoGenex Option will be exchanged
for an option (an " Assumed Option ") to purchase Sonus
Common Shares, and no other consideration will be provided
therefor; and
E. To
give effect to the Assumed Options and enable the holders of
OncoGenex Options ("Optionholders") to purchase Sonus Common Shares
upon exercise of the Assumed Options Sonus has agreed to assume
OncoGenex's obligations under the
JDS\349901\STORM\7722
-2-
OncoGenex Stock Option Plan, as
amended hereby, and to assume and exchange OncoGenex Options for
Assumed Options on the basis set out in the Plan of
Arrangement.
NOW THEREFORE for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1.
Definitions . Each term denoted herein by initial capital
letters and not otherwise defined herein shall have the meaning
ascribed thereto in the Plan of Arrangement unless the context
requires otherwise.
2.
Assumption of Plan and Options . In order to implement the
Plan of Arrangement and enable Optionholders to purchase Sonus
Common Shares pursuant to the Assumed Options on the basis set out
in the Plan of Arrangement, Sonus shall, with effect from the
Effective Time, assume, observe, perform and discharge all
covenants, terms, conditions and obligations contained in the
OncoGenex Stock Option Plan and the OncoGenex Options required to
be observed, performed and discharged by OncoGenex in the place and
stead of OncoGenex on the terms and conditions specified
herein.
3.
Terms of Plan . For greater certainty, and in order to give
effect to the Assumed Options, the covenants, terms, conditions and
obligations which Sonus will observe, perform and discharge in
respect of the OncoGenex Stock Option Plan shall, with effect from
the Effective Time, be deemed to be those in the OncoGenex Stock
Option Plan, subject to the amendments as follows:
|
(a)
|
each and every reference to a
"Common Share" thereunder shall be deemed to be a reference to a
Sonus Common Share and any reference to "Common Shares" under the
OncoGenex Stock Option Plan shall be deemed to be a reference to
Sonus Common Shares;
|
|
(b)
|
each and every reference to
OncoGenex or the Company thereunder shall be deemed to be a
reference to Sonus;
|
|
(c)
|
each and every reference to "Series
B2 Issue Date" thereunder shall be deemed to be a reference to the
Effective Time;
|
|
(d)
|
sections 2.9, 2.12, 2.14, 2.16,
2.28, 2.30, 2.33, 6.1 and 7.5 shall be deemed to be deleted in
their entirety;
|
|
(e)
|
section 2.15 shall be deemed to be
deleted in its entirety and replaced with the following:
|
""Joint Actor" means a person acting
"jointly or in concert with" another person as that phrase is
interpreted in Section 96 of the Securities Act."
|
(f)
|
section 2.19 shall be deemed to be
deleted in its entirety and replaced with the following:
|
JDS\349901\STORM\7722
-3-
""Option Agreement" means an
agreement, in the form attached hereto as Schedule "A" or in such
other form as may be approved by the Board, whereby the Company
grants to an Optionee and Option."
|
(g)
|
section 2.32 shall be deemed to be
deleted in its entirety and replaced with the following:
|
""Shares" means the common shares in
the capital of the Company as constituted at the Effective Time
provided that, in the event of any adjustment pursuant to Section
5, "Shares" shall thereafter mean the shares or other property
resulting from the events giving rise to the
adjustment."
|
(h)
|
the following paragraph shall be
deemed to be added immediately following section 2.37 and prior to
section 3:
|
"In addition, in this Plan, the
terms "Effective Time" and "Reverse Stock Split" shall have the
meanings given thereto in the plan of arrangement between the
Company and OncoGenex Technologies Inc. under section 192 of
the Canada Business
Corporations Act pursuant
to which the Company acquired all of the issued and outstanding
shares and debentures in the capital of OncoGenex Technologies
Inc."
|
(i)
|
the reference in Exhibit I to
Schedule A to the OncoGenex Stock Option Plan to the address and
telephone and facsimile numbers for the Company shall be deemed to
be:
|
1522 217 th Place SE,
Suite 100 Bothell, WA 98021
Telephone: 425-487-9500
Facsimile: 425-686-1600
|
(j)
|
section 3.2 shall be deemed to be
deleted in its entirety and replaced with the following:
|
"The maximum numbe
