Exhibit 10.1
ONCOTHYREON INC.
AMENDED AND RESTATED RESTRICTED
SHARE UNIT PLAN
Effective February 22,
2007,
as amended and restated on June 12,
2009 and October 22, 2009
1.
PURPOSE OF THE PLAN . The purpose of this plan
(the " Plan ") is to promote the long term success of
Oncothyreon Inc. (the " Corporation ") by providing for
incentives for future services during the Grant Period in the form
of Restricted Share Units (RSUs) to non-employee members of the
Board of Directors. The Plan is designed to provide
non-employee Directors with additional incentive to further the
growth and development of the Corporation and to acquire a
proprietary interest in the Corporation through ownership of
shares.
2.
DEFINITIONS . For purposes of the Plan, the terms
contained in this Section 2 have the following
meanings:
" Administrator " means such
administrator as may be appointed, pursuant to Section 3, by
the Board of Directors from time to time to administer the
Plan;
" Board of Directors " means the board of
directors of the Corporation or, if duly authorized by the Board of
Directors in respect of the Plan, a committee of the Board of
Directors;
" Business Day " means a day, other than
a Saturday or Sunday, on which banking institutions in Seattle, WA
or New York, NY are not authorized or obligated by law to
close;
A " Change in Control " shall be deemed
to have occurred if any person or any group of two or more persons
acting jointly or in concert acquires (within the 12 month period
preceding the most recent acquisition by such persons), directly or
indirectly, or acquires the right to control or direct, the
beneficial ownership of stock of the Corporation possessing
thirty-five percent (35%) or more of the outstanding total voting
power of the securities of the Corporation or any successor to the
Corporation, in any manner, including without limitation as a
result of a takeover bid or an amalgamation of the Corporation with
any other corporation or any other business combination or
reorganization, and for purposes hereof "outstanding total voting
power of the securities" includes any security other than a debt
security carrying a voting right either under all circumstances or
under some circumstances that have occurred and are
continuing;
" CIC Date " means the date of any Change
in Control;
" Corporation " means Oncothyreon Inc.
and its successors;
" Effective Date " means for a Grant, the
date which the Board of Directors determines will be the date on
which the Grant will take effect;
" Fiscal Year " means any fiscal year of
the Corporation;
" Grant " means the grant of RSUs
allocated to a Participant at any time in accordance with
Section 5 hereof;
" Grant Period " means the period
established by the Board of Directors in respect of each Grant,
which period shall commence on the Effective Date and end on the
date designated by the Board of Directors; provided however that
such period will not exceed five years;
" Identification Period ", for the
purposes of the definition of "Specified Employee", shall be
measured on the basis of the calendar year;
" Insider " has the meaning ascribed
thereto in Section 16 of the Securities Exchange Act of 1934, as
amended;
" Notice of Grant " refers to the notice
delivered in accordance with Section 5 to each Participant
under a Grant in connection with the grant thereof that sets out
the terms of the Grant in accordance with
Section 5;
" Participant " means an individual to
whom a Grant has been made;
" Person " means, without limitation, an
individual, sole proprietorship, partnership, unincorporated
association, unincorporated syndicate, unincorporated organization,
trust, body corporate and a trustee executor, administrator, or
other legal representative;
" Plan " means the amended and restated
restricted share unit plan as set forth herein and as may be
amended from time to time;
" Release Date " means, for a Grant,
unless otherwise determined by the Board of Directors, the day
which is thirty calendar days following the fifth anniversary of
the Effective Date of the Grant;
" Retirement " means, in respect of a
Participant, resignation from the Board of Directors;
" RSU " means a restricted share unit
allocated to a Participant in accordance with Section 5 which
shall upon issuance, in accordance with and subject to the
provisions of the Plan, entitle the holder thereof to receive one
RSU Share;
" RSU Share " means a Share delivered to
a Participant in accordance with the provisions of the Plan in
settlement of an RSU issued to the Participant under the
Plan;
" Share " means a common share in the
capital of the Corporation;
" Specified Employee " means a
Participant who:
(a) is
an employee (as opposed to a non-employee member of the Board of
Directors);
(b) satisfies
the definition in clause 409A(a)(2)(B)(i) of the U.S. Internal
Revenue Code (the "Code") (see below) at any time during the
relevant Identification Period; and
(c) terminates
employment at any time during the 12 months following the first day
of the fourth month following the end of the last preceding
Identification Period.
As set forth in section 409A(a)(2)(B)(i) of the
Code, a "specified employee" generally is an employee that
satisfies one of these three tests at any time in the
year:
(i) is one of
the top 50 officers (or, if lesser, the greater of 3 or 10% of the
employees) of the employer with compensation greater than US
$130,000 (as adjusted for inflation);
(ii) is an employee
who owns more than 5% of the total stock or the total voting stock
of the employer; or
(iii) is an employee with
compensation greater than US $150,000 who owns more than 1% of the
total stock or the total voting stock of the employer;
and
3.
ADMINISTRATION . The Board of Directors shall
administer the Plan in accordance with its terms. The
Board of Directors may, from time to time, subject to the terms of
the Plan, delegate to the Administrator, if and to the extent that
one is appointed, the whole or any part of the administration of
the Plan and shall determine the scope of such delegation and may
from time to time revoke or amend any such
delegation. For greater certainty, no Administrator need
be appointed and, if an Administrator is appointed but ceases to
serve at any time and for any reason then a replacement
Administrator may (but need not be) appointed. Any
decision made by the Board of Directors or the Administrator in
carrying out their responsibilities with respect to the
administration of the Plan shall be final and binding on all
Persons, including the Participants and their legal representatives
and beneficiaries.
In addition to the other powers granted to the
Board of Directors under the Plan and subject to the terms of the
Plan, the Board of Directors shall have full and complete authority
to interpret the Plan. The Board of Directors and/or the
Administrator may from time to time prescribe such rules and
regulations and make all determinations necessary or desirable for
the administration of the Plan. In particular, the Board
of Directors shall select the Participants to whom it recommends
Grants be made and shall determine the amounts and terms of the
Grants. Any such interpretation, rule, determination or
other act of the Board of Directors and/or the Administrator shall
be conclusively binding on all Persons, including the Participants
and their legal representatives and beneficiaries.
No member of the Board of Directors (in his/her
capacity as an administrator of the Plan as opposed to a
Participant under the Plan) or the Administrator shall be liable
for any action or determination made in good faith pursuant to the
Plan. To the full extent permitted by law (including but
not limited to all costs and expenses on a solicitor and client
full indemnity basis), the Corporation shall indemnify and save
harmless each Person made, or threatened to be made, a party to any
action or proceeding by reason of the fact that such Person is or
was a member of the Board of Directors (in his/her capacity as an
administrator of the Plan as opposed to a Participant under the
Plan) or is or was the Administrator and, as such, is or was
required or entitled to take action pursuant to the terms of the
Plan.
Except as Participants may otherwise be advised
by written notice given together with the Notice of Grant, all
costs of the Plan, including any administration fees, shall be paid
by the Corporation.
4.
RSU SHARES SUBJECT TO THE PLAN . The Corporation
shall not be required to issue and/or cause to be delivered Shares
or issue and/or cause to be delivered certificates evidencing
Shares to be delivered pursuant to the Plan unless and until such
issuance and delivery can be completed in compliance with the
applicable laws, regulations, rules, orders of governmental or
regulatory authorities and the requirements of all applicable stock
exchanges upon which Shares are listed. The Corporation
shall be obligated to take all reasonable action to comply with any
such laws, regulations, rules, orders, or
requirements. Subject to the foregoing, the Board of
Directors may authorize from time to time the issuance by the
Corporation of Shares or the purchase of Shares for the benefit of
Participants on the open market or by private transaction as
required in order to administer the Plan and to fulfill the
obligations of the Corporation pursuant to the Plan. At
any time, the aggregate number of Shares issued and issuable under
Grants shall not exceed the total number of Shares reserved for
issuance under the Plan.
5.
GRANTS . Subject to the provisions of the Plan,
the Board of Directors shall, in it sole discretion and from time
to time, determine the Participants to whom Grants will be made
under the Plan. The Board of Directors shall also
determin
