Exhibit 10.2


 


VOTING AGREEMENT


 


This VOTING
AGREEMENT (this “Agreement”)
is made and entered into as of May 27, 2008, by and between OncoGenex
Technologies Inc., a corporation existing under the federal laws of Canada (“OncoGenex”),
and the signatory hereto (the “Stockholder”).  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 Pharmaceuticals, Inc., a Delaware corporation (“Sonus”),
and 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, OncoGenex has required
that the Stockholder, solely in the Stockholder’s capacity as a holder of Sonus
Common Shares, enter into, and the Stockholder 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 Stockholder.  The
Stockholder hereby represents and warrants to OncoGenex as follows:


 


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


 


(b)                                 Ownership of Shares. The Stockholder is the beneficial owner
or record holder of the number of Sonus Common Shares listed on Schedule A
attached hereto (the “Existing
Shares” and, together with any Sonus Common Shares the record or
beneficial ownership of which is acquired by the Stockholder after the date
hereof, the “Shares”).  The
Stockholder also owns the number of Sonus stock options listed on Schedule A
attached hereto (“Sonus Options”), which, together with the Existing
Shares, constitute all of the shares of Sonus Common Stock and other Sonus
securities owned of record or beneficially by the Stockholder as of the date
hereof.  With respect to the Existing
Shares, the Stockholder 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 Stockholder is a party or
which the Stockholder or the Stockholder’s Shares are subject to or bound.


 


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


 


2.                                       Voting Agreement and
Agreement Not to Transfer.


 


(a)                                  The Stockholder hereby agrees to vote or
cause to be voted all of the Stockholder’s Shares (i) in favor of (A) the
approval of the issuance by Sonus of the Sonus Common Shares to be issued
pursuant to the Arrangement, (B) the Reverse Stock Split, (C) the
Name Change, (D) the Capital Adjustment, and (E) the election of
those directors nominated to the Board of Directors of Sonus in accordance with
the terms of the Arrangement Agreement; (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
Sonus under the Arrangement Agreement; and (iii) except with the prior
written consent of OncoGenex, against the following actions (other than the Arrangement):
(W) any extraordinary corporate transactions, such as a merger,
consolidation or other business combination involving Sonus; (X) any sale,
lease, transfer or disposition of a material amount of the assets of Sonus; (Y) any
other change in the corporate structure, business, assets or ownership of
Sonus; or (Z) 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 OncoGenex of the Arrangement and
the transactions contemplated by the Arrangement Agreement.  The Stockholder shall not enter into any
agreement, arrangement or understanding with any Person prior to the
Termination Date (as defined 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 Stockholder to
vote any Shares in accordance with the terms of this Agreement, the Stockholder
hereby grants to the Chief Executive Officer and Chief Financial Officer of
OncoGenex, and each of them individually, a proxy coupled with an interest in
all Shares owned by the Stockholder, which proxy shall be irrevocable and
survive until the Termination Date, to vote all such Shares in the manner
provided in this Agreement.  If between
the execution hereof and the Termination Date, the Stockholder should die or
become incapacitated, or if any trust or estate holding the Stockholder’s
Shares should be terminated, or if any corporation or partnership holding the
Shares should be dissolved or liquidated, or if any other such similar event or
events shall occur before the Termination Date, any actions taken by OncoGenex
under this Agreement 


 


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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 OncoGenex has
received notice of such death, incapacity, termination, dissolution,
liquidation or other event.


 


(c)                                  The Stockholder hereby agrees not to (i) sell,
transfer, convey, assign or otherwise dispose of any of his, her or its Shares
without the prior written consent of OncoGenex, other than Shares sold or
surrendered or deemed sold or surrendered to pay the exercise price of any
Sonus 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 Shares.  Any
permitted transferee of the Stockholder’s Shares must become a party to this
Agreement and any purported transfer of the Stockholder’s Shares to a Person that
does not become a party hereto shall be null and void ab initio.


 


3.                                       Cooperation. 
The Stockholder agrees that he or she will not (directly or indirectly)
encourage, initiate, solicit or take any other action designed to facilitate
any Acquisition Proposal involving Sonus from any Person.  Further, the Stockholder 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 OncoGenex,
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 Stockholder hereby agrees to permit OncoGenex to publish and
disclose in the Circular (and all other documentation required in connection
with the OncoGenex Meetings), and in any press release or other disclosure
document which OncoGenex reasonably determines to be necessary or desirable to
comply with applicable laws or the rules and regulations of any regulatory
authority having jurisdiction in connection with the Arrangement and any
transactions related thereto, Stockholder’s identity and ownership of the
Shares and the nature of Stockholder’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 Stockholder 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 Stockholder
to comply with its obligations hereunder or as may be required by Law.  The Stockholder shall not, so long as Sonus
or OncoGenex 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 Stockholder’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.                                       Stockholder Capacity. 
The Stockholder is entering this Agreement in his, her or its capacity
as the record or beneficial owner of the Shares, and not in his or her capacity
as a director or officer of Sonus.


 


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7.                                       Termination. 
If the Arrangement is consummated, the obligations of the Stockholder
hereunder shall terminate upon the consummation of the Arrangement.  If the Arrangement is not consummated, the
obligations of the Stockholder hereunder shall terminate upon the termination
of the Arrangement Agreement in accordance with its terms.  The “Termination Date” for any
particular provision hereunder shall be the date of termination of the
Stockholder’s obligations under such provision.


 


8.                                       Specific Performance. 
The Stockholder 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
OncoGenex 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
Stockholder from violating any of its obligations under this Agreement.  In connection with any action or proceeding
for such equitable or injunctive relief, the Stockholder 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 Stockholder
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 Stockholder enjoining or restraining
any breach or threatened breach of this Agreement.


 


9.                                       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.


 


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(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.


 


(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
the State of Delaware, 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 the courts of the Court of Chancery of Delaware and the
Federal Courts of the United States of America located in the State of Delaware
and, by execution and delivery of this Agreement, each of the Stockholder and
OncoGenex 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 Stockholder and OncoGenex 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 9(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 9(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 


 


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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 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 9(l), be sent to the address or
facsimile number indicated below:


 


	
  If to OncoGenex, addressed to it at:

  
	
   

  	
   

  
	
   

  	
  OncoGenex Technologies Inc.

  
	
   

  	
  400 – 1001 West Broadway

  
	
   

  	
  Vancouver, BC V6H 4B1

  
	
   

  	
  Attention:

  	
  President and Chief Executive Officer

  
	
   

  	
  Facsimile:

  	
  (604) 736-3687

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  
	
   

  	
   

  
	
   

  	
  DuMoulin Black LLP

  
	
   

  	
  10th Floor, 595 Howe Street

  
	
   

  	
  Vancouver, British Columbia V6C 2T5

  
	
   

  	
  Attention:

  	
  J. Douglas Seppala

  
	
   

  	
  Facsimile:

  	
  (604) 687-3635

  
	
   

  	
   

  	
   

  
	
   

  	
  and to:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dorsey &Whitney LLP

  
	
   

  	
  U.S. Bank Centre

  
	
   

  	
  1420 Fifth Avenue

  
	
   

  	
  Suite 3400

  
	
   

  	
  Seattle, WA  98101-4010

  
	
   

  	
  Attention:

  	
  Randal Jones

  
	
   

  	
  Facsimile:

  	
  (206) 903-8820

  



 


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


 


(m)                               Advice of Counsel. 
STOCKHOLDER ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, STOCKHOLDER
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.


 


	
   

  	
  ONCOGENEX TECHNOLOGIES INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  President and Chief Executive

  
	
   

  	
   

  	
  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  STOCKHOLDER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  STOCKHOLDER’S SPOUSE (if applicable):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address for Notices:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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SCHEDULE
A


 


Number of Sonus Common Shares:                                           


 


Number of Sonus Options:                                           


 


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