exv10w40xay






Exhibit 10.40(a)




ONCOTHYREON INC.




AMENDMENT TO GARY CHRISTIANSON OFFER LETTER




     This amendment (the “Amendment”) is made by and between Gary Christianson (“Executive”) and
Oncothyreon Inc. (formerly Biomira Inc.), a Delaware corporation (the “Company” and together with
the Executive hereinafter collectively referred to as the “Parties”) on December 31, 2008.



WITNESSETH:




     WHEREAS, the Parties previously entered into an offer letter, dated June 29, 2007 (the “Offer
Letter”); and



     WHEREAS, the Company and Executive desire to amend certain provisions of the Offer Letter in
order to come into documentary compliance with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), and any final regulations and official guidance promulgated thereunder
(together, “Section 409A”) so as to avoid the imposition of the additional tax imposed under
Section 409A, as set forth below.



     NOW, THEREFORE, for good and valuable consideration, Executive and the Company agree that the
Offer Letter is hereby amended as follows:


1. Severance. Section 5 of the Offer Letter is hereby amended to add the following to the
end thereof:




          “Section 409A.





          (i) Notwithstanding anything to the contrary in this letter agreement, no severance
payable to you, if any, pursuant to this letter agreement that, when considered together
with any other severance payments or separation benefits, are considered deferred
compensation under Section 409A of the Internal Revenue Code of 1986, as amended, and
any final regulations and official guidance promulgated thereunder (together, “Section
409A”) (together, the “Deferred Payments”) will be payable until you have a “separation
from service” within the meaning of Section 409A. Similarly, no severance payable to
you, if any, pursuant to this letter agreement that otherwise would be exempt from
Section 409A pursuant to Treasury Regulation Section 1.409A-1(b)(9) will be payable
until you have a “separation from service” within the meaning of Section 409A.




          (ii) Notwithstanding anything to the contrary in this letter agreement, if you are
a “specified employee” within the meaning of Section 409A at the time of your separation
from service, then, if required, the Deferred Payments, which are otherwise due to you
on or within the six (6) month period following your separation from service will
accrue, to the extent required, during such six (6) month period and will become payable
in a lump sum payment on the date six (6) months and one (1) day following the date of
your separation from service or the date of your death, if earlier.



 









 






All subsequent Deferred Payments, if any, will be payable in accordance with the
payment schedule applicable to each payment or benefit. Each payment and benefit
payable under this letter agreement is intended to constitute a separate payment for
purposes of Treasury Regulation Section 1.409A-2(b)(2).




          (iii) Any amount paid under the letter agreement that satisfies the requirements of
the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations will not constitute Deferred Payments for purposes of clause (i) above.




          (iv) Any amount paid under this letter agreement that qualifies as a payment made
as a result of an involuntary separation from service pursuant to Section
1.409A-1(b)(9)(iii) of the Treasury Regulations that does not exceed the Section 409A
Limit will not constitute Deferred Payments for purposes of clause (i) above. “Section
409A Limit” will mean the lesser of two (2) times: (i) your annualized compensation
based upon the annual rate of pay paid to you during your taxable year preceding your
taxable year of your termination of employment as determined under Treasury Regulation
Section 1.409A-1(b)(9)(iii)(A)(1) and any Internal Revenue Service guidance issued with
respect thereto; or (ii) the maximum amount that may be taken into account under a
qualified plan pursuant to Section 401(a)(17) of the Internal Revenue Code for the year
in which your employment is terminated.




          (v) The foregoing provisions are intended to comply with the requirements of
Section 409A so that none of the severance payments and benefits to be provided
hereunder will be subject to the additional tax imposed under Section 409A, and any
ambiguities herein will be interpreted to so comply. You and the Company agree to work
together in good faith to consider amendments to this letter agreement and to take such
reasonable actions which are necessary, appropriate or desirable to avoid imposition of
any additional tax or income recognition prior to actual payment to you under Section
409A.”


2. Relocation. Section 8 of the Offer Letter is hereby amended to add the following
sentence to the end thereof:





“Any such Company provided or paid relocation expenses are subject to your continued
employment with the Company through the payment date.”


3. Full Force and Effect. To the extent not expressly amended hereby, the Offer Letter
shall remain in full force and effect.



4. Entire Agreement. This Amendment and the Offer Letter constitute the full and entire
understanding and agreement between the Parties with regard to the subjects hereof and thereof.
This Amendment may be amended at any time only by mutual written agreement of the Parties.




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5. Counterparts. This Amendment may be executed in counterparts, all of which together
shall constitute one instrument, and each of which may be executed by less than all of the parties
to this Amendment.



6. Governing Law. This Amendment will be governed by the laws of the State of Washington
(with the exception of its conflict of laws provisions).




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     IN WITNESS WHEREOF, each of the Parties has executed this Amendment, in the case of the
Company by its duly authorized officer, as of the date set forth above.



	 	 	 	 	 	 	 
	COMPANY	 	ONCOTHYREON INC.
	 
	 	 	 	 	 	 
	 
	 	/s/ Robert L. Kirkman, M.D.	 	 
	 

	 	 
	 	 	 	 
	 
	 	By:	 	Robert L. Kirkman, M.D.	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	President and Chief Executive Officer	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EXECUTIVE	 	GARY CHRISTIANSON
	 
	 	 	 	 	 	 
	 
	 	/s/ Gary Christianson	 	 
	 

	 	 
	 	 	 	 






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