Exhibit 10.1


 


VOTING AGREEMENT


 


This VOTING
AGREEMENT (this “Agreement”)
is made and entered into as of May 27, 2008, by and between Sonus
Pharmaceuticals, Inc., a Delaware corporation (“Sonus”), and the
signatory hereto (the “Securityholder”).  Capitalized terms used and not defined herein
have the same meaning as in the Arrangement Agreement, dated as of the date
hereof (as such agreement may hereafter be amended or modified from time to
time, the “Arrangement Agreement”),
by and between Sonus and OncoGenex Technologies Inc., a corporation existing
under the federal laws of Canada (“OncoGenex”).


 


WHEREAS,
Sonus and OncoGenex will effect an arrangement under Section 192 of the
CBCA, subject to the terms and conditions set forth in the Arrangement
Agreement and Plan of Arrangement; and


 


WHEREAS, as a
condition to entering into the Arrangement Agreement, Sonus has required that
the Securityholder, solely in the Securityholder’s capacity as a holder of
OncoGenex securities, enter into, and the Securityholder has agreed to enter
into, this Agreement.


 


NOW,
THEREFORE, in consideration of the premises, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:


 


1.                                       Representations and Warranties
of the Securityholder.  The Securityholder hereby
represents and warrants to Sonus as follows:


 


(a)                                  Authority; Binding
Obligation.  The Securityholder has all necessary power
and authority to enter into this Agreement and perform all of the Securityholder’s
obligations hereunder.  This Agreement
has been duly and validly executed and delivered by the Securityholder (and the
Securityholder’s spouse, if the Securities (as defined below) constitute
community property under applicable law) and constitutes a valid and legally
binding obligation of the Securityholder and such spouse, enforceable against
the Securityholder and such spouse, as the case may be, in accordance with its
terms.


 


(b)                                 Ownership of Securities. The Securityholder is the beneficial
owner or record holder of the number of securities of OncoGenex listed on Schedule
A attached hereto (the “Existing
Securities” and, together with any securities of OncoGenex the
record or beneficial ownership of which is acquired by the Securityholder after
the date hereof, the “Securities”). 
The Existing Securities listed on Schedule A constitute all of the
OncoGenex securities of record or beneficially owned by the Securityholder as
of the date hereof.  With respect to the
Securities, the Securityholder has sole voting power and sole power to issue
instructions with respect to or otherwise engage in the actions set forth in Section 2
hereof, and sole power of disposition, with no restrictions on the voting
rights, rights of disposition or otherwise, subject to applicable laws and the
terms of this Agreement.


 

















 


(c)                                  No Conflicts. 
Neither the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby will conflict with or
constitute a violation of or a default under (with or without notice, lapse of
time, or both) any contract, agreement, voting agreement, shareholders’
agreement, trust agreement, voting trust, proxy, power of attorney, pooling
arrangement, note, mortgage, indenture, instrument, arrangement or other
obligation or restriction of any kind to which the Securityholder is a party or
which the Securityholder or the Securityholder’s Securities are subject to or
bound, other than the Shareholders’ Agreement, the applicable provisions of
which have been waived by the Securityholder.


 


(d)                                 Reliance. 
The Securityholder understands and acknowledges that Sonus is entering
into the Arrangement Agreement in reliance upon the Securityholder’s execution
and delivery of this Agreement.


 


2.                                       Voting Agreement and
Agreement Not to Transfer.


 


(a)                                  The Securityholder hereby agrees to vote
or cause to be voted all of the Securityholder’s Securities (i) in favor
of the approval of the Arrangement Resolution and the Arrangement; (ii) against
any action or agreement that would result in a breach in any material respect
of any covenant, representation or warranty or any other obligation or
agreement of OncoGenex under the Arrangement Agreement; and (iii) except
with the prior written consent of Sonus, against the following actions (other
than the Arrangement):  (A) any
extraordinary corporate transactions, such as an amalgamation, consolidation or
other business combination involving OncoGenex; (B) any sale, lease,
transfer or disposition of a material amount of the assets of OncoGenex; (C) any
change in the board of directors of OncoGenex; (D) any material change in
the present capitalization of OncoGenex; (E) any amendment of OncoGenex’s
articles of incorporation or bylaws; (F) any other change in the corporate
structure, business, assets or ownership of OncoGenex; or (G) any other
action which is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the contemplated economic
benefits to Sonus or OncoGenex of the Arrangement and the transactions
contemplated by the Arrangement Agreement. 
The Securityholder shall not enter into any agreement, arrangement or
understanding with any Person prior to the Termination Date (as defined in Section 7
below) to vote or give instructions, whether before or after the Termination
Date, in any manner inconsistent with clauses (i), (ii) or (iii) of
the preceding sentence.


 


(b)                                 Upon the failure of the Securityholder to
vote any Securities in accordance with the terms of this Agreement, the
Securityholder hereby grants to the Chief Executive Officer and Chief Financial
Officer of Sonus, and each of them individually, a proxy coupled with an
interest in all Securities owned by the Securityholder, which proxy shall be
irrevocable and survive until the Termination Date, to vote all such Securities
in the manner provided in this Agreement. 
If between the execution hereof and the Termination Date, the
Securityholder should die or become incapacitated, or if any trust or estate
holding the Securityholder’s Securities should be terminated, or if any
corporation or partnership holding the Securities should be dissolved or
liquidated, or if any other such similar event or events shall occur before the
Termination Date, any actions taken by 


 


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Sonus under this
Agreement shall be as valid as if such death, incapacity, termination,
dissolution, liquidation or other similar event or events had not occurred,
regardless of whether or not Sonus has received notice of such death,
incapacity, termination, dissolution, liquidation or other event.


 


(c)                                  The Securityholder hereby agrees not to (i) sell,
transfer, convey, assign or otherwise dispose of any of his, her or its
Securities without the prior written consent of Sonus, other than Securities
sold or surrendered or deemed sold or surrendered to pay the exercise price of
any OncoGenex Options or to satisfy OncoGenex’s withholding obligations with
respect to any Taxes resulting from such exercise or resulting from the vesting
of restricted stock or restricted performance stock, or (ii) pledge,
mortgage or otherwise encumber such Securities. 
Notwithstanding the foregoing, the Securityholder may complete any
Permitted Transfer (as defined in Schedule B) without the prior written consent
of Sonus.  Any permitted transferee of
the Securityholder’s Securities must become a party to this Agreement and any
purported transfer of the Securityholder’s Securities to a Person that does not
become a party hereto shall be null and void ab
initio.


 


3.                                       Cooperation. 
The Securityholder agrees that he or she will not (directly or
indirectly) (i) encourage, initiate, solicit or take any other action
designed to facilitate any Acquisition Proposal involving OncoGenex from any
Person or (ii) exercise any dissent right that the Securityholder may have
in connection with the Arrangement. 
Further, the Securityholder hereby agrees to execute and deliver, or
cause to be executed or delivered, such additional proxies, consents, waivers
and other instruments, and undertake any and all further action, necessary or
desirable, in the reasonable opinion of Sonus, to carry out the purpose and
intent of this Agreement and to consummate the Arrangement under the terms of
the Arrangement Agreement.


 


4.                                       Disclosure. 
The Securityholder hereby agrees to permit Sonus to publish and disclose
in the Proxy Statement (including all documents and schedules filed with the
SEC), and in any press release or other disclosure document which Sonus reasonably
determines to be necessary or desirable to comply with applicable laws or the rules and
regulations of Nasdaq or such other regulatory authority having jurisdiction in
connection with the Arrangement and any transactions related thereto, Securityholder’s
identity and ownership of OncoGenex Securities and the nature of Securityholder’s
commitments, arrangements and understandings under this Agreement, provided
that any public announcement or disclosure is made in accordance with the terms
of the Arrangement Agreement.


 


5.                                       Confidentiality.  The Securityholder shall keep the existence and
contents of this Agreement confidential and shall not disclose its existence or
contents to any other person except as is necessary in order to enable the
Securityholder to comply with its obligations hereunder or as may be required
by Law.  The Securityholder shall not, so
long as Sonus has not announced the Arrangement to the public generally,
disclose information about the Arrangement or this Agreement to any other
person, unless such disclosure is necessary in the Securityholder’s course of
business and the person receiving the information acknowledges that he or she
is also prohibited from disclosing such information to others.


 


6.                                       Securityholder Capacity. 
The Securityholder is entering this Agreement in his, her or its
capacity as the record or beneficial owner of the Securities, and not in his,
her or its capacity as a director or officer of OncoGenex.


 


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7.                                       Termination. 
The obligations of the Securityholder hereunder shall terminate:


 


(a)                                  if the Arrangement is consummated, upon
the consummation of the Arrangement;


 


(b)                                 if the Arrangement is not consummated,
upon the termination of the Arrangement Agreement in accordance with its terms;


 


(c)                                  upon any material amendment to the
Arrangement Agreement or Plan of Arrangement being given effect that has not
been approved by the OncoGenex Shareholders;


 


(d)                                 on August 31, 2008 if not otherwise
terminated prior to such date and provided that the Proxy Statement is not
subject to a review by the SEC; or


 


(e)                                  on September 30, 2008 if not
otherwise terminated prior to such date and provided that the Proxy Statement
is reviewed by the SEC.


 


The “Termination
Date” for any particular provision hereunder shall be the date of
termination of the Securityholder’s obligations under such provision.


 


8.                                       Specific Performance. 
The Securityholder acknowledges that it would be impossible to determine
the amount of damages that would result from any breach of any of its
obligations under this Agreement and that the remedy at law for any breach, or
threatened breach, would likely be inadequate and, accordingly, agrees that
Sonus shall, in addition to any other rights or remedies which it may have at
law or in equity, be entitled to seek such equitable and injunctive relief as
may be available from any court of competent jurisdiction to restrain the
Securityholder from violating any of its obligations under this Agreement.  In connection with any action or proceeding
for such equitable or injunctive relief, the Securityholder hereby waives any
claim or defense that a remedy at Law alone is adequate and agrees, to the
maximum extent permitted by Law, to have the obligations of the Securityholder
under this Agreement specifically enforced against him or her, without the
necessity of posting bond or other security, and consents to the entry of
equitable or injunctive relief against the Securityholder enjoining or
restraining any breach or threatened breach of this Agreement.


 


9.                                       Non-Resident Tax Matters. 
The Securityholder acknowledges and agrees as follows:


 


(a)                                  Withholding Rights. 
Each of Sonus and the Depositary (as defined in the Plan of Arrangement)
shall be entitled to withhold from any Sonus Common Shares or other
consideration otherwise issuable or payable pursuant to the Plan of Arrangement
to any holder of OncoGenex Shares and OncoGenex Debentures who is not a
Canadian Resident (a “Non-Resident Holder”), such amounts as Sonus or
the Depositary, respectively, are required to deduct and withhold with respect
to such issuance or payment, as the case may be, under Sections 116  and 212 
of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.), as amended (the “ITA”).  Since the consideration paid to the
Non-Resident Holder of OncoGenex Shares and OncoGenex Debentures under the
Arrangement Agreement is in the form of Sonus Common Shares and not cash, and
the liquidation value 


 


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of
those shares is unknown, Sonus or the Depositary will initially holdback all
Sonus Common Shares otherwise issuable to a Non-Resident Holder. Any
amount actually paid to the Canada Revenue Agency (the “CRA”) by Sonus
or by the Depositary when demanded by the CRA under the ITA on behalf of
any Non-Resident Holder of OncoGenex Shares and
OncoGenex Debentures will immediately become due and payable to Sonus
by the Non-Resident Holder and shall bear interest at 15% per annum,
compounded monthly.  The Sonus Common Shares (including Deposited
Securities) withheld according to this Section 9(a) will not be
released to a Non-Resident Holder until the amounts owing to Sonus
are paid in full or waived by Sonus  or such
conditions described in Section 9(b) are met.  If there is no tax ultimately owing by the
Non-Resident Holder to the CRA, the interest on the amounts remitted to the CRA
by Sonus or the Depositary will be waived by Sonus.  If there is an amount owing to Sonus (as a
result of Sonus making a payment to the CRA on behalf of a Non-Resident
Holder), Sonus shall be authorized to deposit the withheld shares in a
segregated brokerage account in trust for the benefit of the Non-Resident
Holder and the Non-Resident Holder shall be deemed to have provided the trustee
of that account with irrevocable instructions to sell, on terms satisfactory to
Sonus, a sufficient number of the withheld Sonus Common Shares to satisfy the
taxes paid by Sonus or the Depositary on behalf of the Non-Resident Holder and
interest accrued and remit those proceeds to Sonus.  If upon the sale of all such Sonus Common
Shares and the remittance of all of the related proceeds to Sonus, any
remaining liability by the Non-Resident Holder to Sonus remains, that remaining
liability shall be waived by Sonus. 
Notwithstanding the above, any Non-Resident Holder who remits in cash
the full amount of tax withholdings potentially owing prior to the receipt of a
Clearance Certificate (as defined below) or actually owing after the receipt of
a Clearance Certificate, either directly to the CRA or to Sonus, shall have all
of their withheld Sonus Common Shares released, subject to Section 2.2(e) of
the Plan of Arrangement.


 


(b)                                 Clearance Certificates.  If any Sonus
Common Shares or other consideration is deducted or withheld from a Non-Resident
Holder pursuant to Section 116 of the ITA as described in Section 9(a),
Sonus or the Depositary, as the case may be, shall, subject to Section 9(a),
remit such consideration to such Non-Resident Holder upon delivery by
such Non-Resident Holder to Sonus or the Depositary, as the case may be, of a
certificate of compliance (with a certificate limit not less than the fair
market value of the aggregate consideration to be paid to
such Non-Resident Holder for their OncoGenex Shares pursuant to the
terms of the Arrangement) issued pursuant to section 116 of the ITA (a “Clearance
Certificate”).  If such Non-Resident Holder does not so deliver a
Clearance Certificate and withholding payment is demanded by the CRA, Sonus
will remit sufficient funds to the CRA to comply with this remittance
requirement; provided that, if Sonus or the Depositary, as the case may be, is
provided with a letter from the CRA advising that none of the amounts deducted
or withheld in respect of such Non-Resident Holder are required to be remitted,
Sonus or the Depositary, as the case may be, will continue to hold such amounts
in accordance with that letter until a Clearance Certificate is provided or
until the CRA requires the amounts to be remitted, whichever shall first occur. 
Subject to Section 9(a), to the extent that amounts are so deducted or
Sonus Common Shares withheld, the corresponding amounts will be immediately due
and payable to Sonus, provided that such amounts, are actually remitted upon
demand to the CRA in accordance with this section.


 


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(c)                                  Covenant to Apply for Clearance
Certificate.  The Securityholder hereby covenants and
agrees that it will apply to CRA for a Clearance Certificate as soon as
practicable after the Arrangement becomes effective to satisfy delivery of such
certificate to Sonus as such delivery is contemplated in section 9(b) herein.


 


10.                                 Miscellaneous.


 


(a)                                  Definitional Matters.


 


(i)                                     For purposes of this Agreement, “beneficial
ownership” shall be determined in accordance with Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.


 


(ii)                                  The section and paragraph captions herein
are for convenience of reference only, do not constitute part of this Agreement
and shall not be deemed to limit or otherwise affect any of the provisions
hereof.


 


(b)                                 Entire Agreement. 
This Agreement constitutes the entire agreement of the parties hereto
with reference to the transactions contemplated hereby and supersedes all other
prior agreements, understandings, representations and warranties, both written
and oral, between the parties or their respective representatives, agents or
attorneys, with respect to the subject matter hereof.


 


(c)                                  Parties in Interest. 
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto and their respective successors, assigns, estate, heirs,
executors, administrators and other legal representatives, as the case may be.
Nothing in this Agreement, express or implied, is intended to confer upon any
other Person, other than parties hereto or their respective successors,
assigns, estate, heirs, executors, administrators and other legal
representatives, as the case may be, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.


 


(d)                                 Assignment. 
This Agreement shall not be assignable by law or otherwise without the
prior written consent of the other party hereto.


 


(e)                                  Modifications; Waivers. 
This Agreement shall not be amended, altered or modified in any manner
whatsoever, except by a written instrument executed by the parties hereto.  No waiver of any breach or default hereunder
shall be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach of
the same or similar nature.


 


(f)                                    Severability. 
Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity and unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction.  If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.


 


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(g)                                 Governing Law. 
This Agreement shall be deemed to be made in and in all respects shall
be interpreted, construed and governed by and in accordance with the laws of
British Columbia, without regard to the conflict of law principles thereof.


 


(h)                                 Jurisdiction and Venue. 
Any legal action or proceeding with respect to this Agreement shall be
brought solely in a court of competent jurisdiction in the Province of British
Columbia and, by execution and delivery of this Agreement, each of the
Securityholder and Sonus hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of and venue in the
aforesaid courts, notwithstanding any objections it may otherwise have.  Each of the Securityholder and Sonus
irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the delivery of notice as provided
in Section 10(l) below, such service to become effective thirty (30)
days after such delivery.


 


(i)                                     Waiver of Trial by Jury. 
Each party acknowledges and agrees that any controversy which may arise
under this Agreement is likely to involve complicated and difficult issues, and
therefore each such party hereby irrevocably and unconditionally waives any
right such party may have to a trial by jury in respect of any litigation
directly or indirectly arising out of or relating to this Agreement, or the
transactions contemplated by this Agreement. 
Each party certifies and acknowledges that (i) no representative,
agent or attorney of the other party has represented, expressly or otherwise,
that such party would not, in the event of litigation, seek to enforce the
foregoing waiver, (ii) each party understands and has considered the
implications of this waiver, (iii) each party makes this waiver
voluntarily and (iv) each party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in this
Section 10(i).


 


(j)                                     Attorney’s Fees. 
The prevailing party in any litigation, arbitration, mediation,
bankruptcy, insolvency or other proceeding (“Proceeding”) relating to
the enforcement or interpretation of this Agreement may recover from the
unsuccessful party all fees and disbursements of counsel (including expert
witness and other consultants’ fees and costs) relating to or arising out of (a) the
Proceeding (whether or not the Proceeding results in a judgment) and (b) any
post-judgment or post-award Proceeding including, without limitation, one to
enforce or collect any judgment or award resulting from any Proceeding.  All such judgments and awards shall contain a
specific provision for the recovery of all such subsequently incurred costs,
expenses, fees and disbursements of counsel.


 


(k)                                  Counterparts. 
This Agreement may be executed in two or more counterparts, and by the
different parties hereto in separate counterparts, each of which executed
counterparts and any photocopies and facsimile copies thereof, shall be deemed
to be an original, but all of which taken together shall constitute one and the
same agreement.


 


(l)                                     Notices. 
All notices, requests, and other communications given or delivered
hereunder shall be in writing and shall be deemed to have been given, (a) when
received if given in person, (b) on the date of electronic confirmation of
receipt if sent by e-mail, facsimile or other wire transmission, (c) three
days after being deposited in the U.S. mail, certified or registered mail,
postage prepaid, or (d) one day after being 


 


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deposited with a
reputable overnight courier.  Notices,
requests, and communications to the parties shall, unless another address is
specified in writing in accordance with this Section 10(l), be sent to the
address or facsimile number indicated below:


 


	
  If to Sonus, addressed to it at:

  	
   

  
	
   

  	
   

  
	
  Sonus
  Pharmaceuticals, Inc.

  1522 217th Place S.E.

  Bothell, Washington 98021

  Attention:  Chief Executive Officer

  Telephone:  (425) 686-1501

  Facsimile:  (425) 686-1601

  	
   

  
	
   

  	
   

  
	
  with a copy to:

  	
   

  
	
   

  	
   

  
	
  Stradling
  Yocca Carlson & Rauth

  660 Newport Center Drive, Suite 1600

  Newport Beach, California  92660

  Attention: Christopher D. Ivey, Esq.

  Fax:  (949) 725-4100

  	
   

  



 


If to the Securityholder, to the address noted on the
signature page hereto.


 


(m)                               Delivery of Opinion.  Sonus covenants to and with the Securityholder to
deliver to OncoGenex and the Securityholder at the closing of the Arrangement
an opinion of counsel addressed to OncoGenex and the Securityholder, among
others, pertaining to applicable United States and Canadian securities law
matters in respect of the Sonus Common Shares issuable to the OncoGenex
Shareholder on closing of the Arrangement, such opinion to be in a form
satisfactory to the holders of a majority of the OncoGenex Shares acting
reasonably.


 


(n)                                 Advice of Counsel. 
SECURITYHOLDER ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT,
SECURITYHOLDER HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL
COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF
THE DRAFTING OR PREPARATION HEREOF.


 


[Signature page follows]


 


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IN WITNESS WHEREOF, the parties hereto
have executed this Voting Agreement as of the date first above written.


 


	
   

  	
  SONUS PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  President and Chief Executive

  
	
   

  	
   

  	
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECURITYHOLDER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SECURITYHOLDER’S SPOUSE (if applicable):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  IF
  CORPORATE/ENTITY SECURITYHOLDER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name
  of Corporation or other Entity

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
					



 


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SCHEDULE
A


 


Number of OncoGenex Common Shares:                                                     


 


Number of OncoGenex Options:                                                     


 


Number of OncoGenex Series 1 Class A Preferred Shares:                                                     


 


Number of OncoGenex Series 2 Class A Preferred Shares:                                                     


 


Number of OncoGenex Series 1 Class B Preferred Shares:                                                     


 


Number of OncoGenex Series 2 Class B Preferred Shares:                                                     


 


Outstanding Principal Amount of OncoGenex Other Debentures:                                                     


 


Outstanding Principal Amount of BC Advantage Debenture:                                                     


 


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SCHEDULE
“B”


 


PERMITTED
TRANSFERS


 


For the purposes of section
2(c) of the Agreement, each of the following shall be classified as a “Permitted Transfer”:


 


(i)                                  Sale to
a Controlled Corporation – The Securityholder  may from time to time
Transfer (as defined below) all or any part of its Securities to a corporation
which is under the Control (as defined below) of the Securityholder provided
that such corporation agrees as a condition of the Transfer to Transfer back
such Securities to the Securityholder in the event that such corporation ceases
to be under control of the Securityholder.


 


(ii)                              Family,
RSP Sales - A Securityholder may from time to time Transfer
all or any part of its Securities to:


 


A.                                   a trust for the
benefit of the Securityholder or his or her immediate family;


 


B.                                     a registered
retirement savings plan of the Securityholder or his or her spouse; and


 


C.                                     provided that if
such transferee (both legal and beneficial transferees in the case of a trust)
is required to become a party to this Agreement, such transferees (if more than
one) shall designate the Securityholder to represent all of the transferees and
such representative will remain a party to and bound by this Agreement for and
on behalf of such transferees and the Securityholder shall be deemed to be the
legal and beneficial owner of such transferred Securities for the purposes of
this Agreement.


 


(iii)                          Death - Upon the
death of the Securityholder, the Securities may be Transferred in accordance
with a probated will of the deceased or by operation of laws for the
administration of estates upon intestacy, provided that each such transferee
enters into an agreement under which the transferee becomes party to and bound
by this Agreement.


 


(iv)                            Investor
Exemptions – If the Securityholder is an Investor (as defined
below) it may Transfer the whole or any part of its Securities:


 


A.                                   if it is required
by law to do so;


 


B.                                     if it resolves to
Transfer all or substantially all of its assets or if the Transfer is part of a
portfolio sale of its assets;


 


C.                                     to any person,
where the Transfer is in connection with a reorganization of the Investor;


 


D.                                    if the Transfer
is to any manager, general partner, affiliate or associate of the Investor or
affiliate or associate of such manager or general partner;


 


E.                                      to any
corporation or other form of entity whose senior officers are, or which is
managed by a corporate manager whose senior officers are, common officers of
the Investor, the Investor’s manager or the Investor’s general partner, as the
case may be, as at the date of the Transfer;


 


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F.                                      to any limited
partnership the general partner of which is Controlled, directly or indirectly,
by the Investor, the manager or general partner of the Investor, or an
affiliate or associate of the Investor, or its manager or general partner as at
the date of the Transfer;


 


G.                                     to any persons
who are bona fide investors (including limited partners, the general partner or
fund manager, as the case may be, or directors, officers, or employees who are
participants in an incentive program) in the Investor who are entitled to
participate in a distribution of the assets of the Investor upon winding-up,
liquidation or dissolution where the Securities are distributed to them on such
occurrence; provided that if such investors are required to become parties to
this Agreement, such investors (if more than one) shall designate one person to
represent all such investors and such representative will become party to and
bound by this Agreement for and on behalf of such investors and the
representative shall be deemed to be the legal and beneficial owner of such
Transferred Securities for the purposes of this Agreement;


 


H.                                    in respect of
Ventures West 7 Limited Partnership (“Ventures West Canada”)
and Ventures West 7 U.S. Limited Partnership (“Ventures
West U.S.”), without limiting any of the foregoing, to (i) any
limited partner of Ventures West Canada or Ventures West U.S., (ii) Ventures
West Capital Ltd., any subsidiary thereof, or any corporation whose senior
officers are common officers of Ventures West Capital Ltd., or (iii) any
fund managed by Ventures West Capital Ltd. or any subsidiary thereof; or


 


I.                                         in respect of
Working Opportunity Fund (EVCC) Ltd., without limiting any of the foregoing, to
any member of the GrowthWorks Group (as defined below)


 


provided that each such transferee enters into an agreement under which
the transferee becomes party to and bound by this Agreement.


 


Defined Terms:


 


In this Schedule “B”, the
following terms shall have the following meanings:


 


“affiliate” means with respect to any person:


 


	
  (i)

  	
   

  	
  any corporation which
  is directly or indirectly Controlled by that person;

  
	
   

  	
   

  	
   

  
	
  (ii)

  	
   

  	
  if a corporation, any
  corporation which Controls that person, and any corporation which is directly
  or indirectly Controlled by a corporation which Controls that corporate
  person; and

  
	
   

  	
   

  	
   

  
	
  (iii)

  	
   

  	
  if a partnership or
  limited partnership, any partner of the partnership or any corporation which
  Controls that partner and any corporation which is directly or indirectly
  Controlled by a corporation that Controls that partner.

  



 


“associate” has
the same meaning as has been designated to that term in the Canada Business Corporations Act (Canada), as amended from
time to time.


 


“Control”,
“Controls” or “Controlled”
means, in relation to a corporation:


 


(i)                                     the right to cast a majority
of the votes which may be cast at a general meeting of that corporation; or


 


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(ii)                                  the right to elect or
appoint, directly or indirectly, a majority of the directors of that
corporation.


 


“GrowthWorks Group”
means:


 


(i)            Growth Works
Capital Ltd. (“GrowthWorks”);


 


(ii)           any investment
fund (whether corporation, limited partnership, trust or other entity) to which
GrowthWorks or any affiliate or associate of GrowthWorks provides management or
investment advisory services; or


 


(iii)          any affiliate
or an associate of the foregoing.


 


“Investors” means Ventures
West Canada, Ventures West US, H.I.G. Horizon Corp., Working Opportunity Fund
(EVCC) Ltd., Business Development Bank of Canada, Milestone Medica Corporation
and WHI Morula Fund, LLC and “Investor” means
any one of them.


 


“Transfer” includes any sale, exchange, assignment, gift,
bequest, disposition, mortgage, charge, pledge, encumbrance, grant of a
security interest or other arrangement by which possession, legal title or
beneficial ownership passes from one person to another, or to the same person
in a different capacity, whether or not voluntarily and whether or not for
value, and any agreement to effect any of the foregoing; and the words “Transferred”, “Transferring”
and similar words have corresponding meanings.


 


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