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