ONCOTHYREON INC. AMENDED AND RESTATED RESTRICTED SHARE UNIT PLAN RESTRICTED SHARE UNIT AGREEMENT
Exhibit
10.1
AMENDED
AND RESTATED RESTRICTED SHARE UNIT PLAN
Unless
otherwise defined herein, the terms defined in the Oncothyreon Inc. (formerly
Biomira Inc.) (the “Company”)
Amended and Restated Restricted Share Unit Plan (the “Plan”)
will have the same defined meanings in this Restricted Share Unit Agreement (the
“Agreement”).
| NOTICE OF RESTRICTED SHARE UNIT GRANT | ||
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Participant
Name:
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Address:
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You
have been granted the right to receive an award of restricted share units
(“RSUs”),
subject to the terms and conditions of the Plan and this Agreement, as
follows:
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Grant
Number:
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Date
of Grant:
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Vesting
Commencement Date:
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Number
of Restricted Share Units:
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Vesting
Schedule:**
Subject
to any acceleration provisions contained in the Plan or set forth below, the RSU
will vest in accordance with the following schedule:
One
hundred percent (100%) of the RSUs shall vest on the two (2) year anniversary of
the Vesting Commencement Date, subject to Participant’s continued service as a
member of the Company’s Board of Directors (the “Board”)
through such date.
Notwithstanding the foregoing, in the
event Participant’s membership on the Board terminates for any reason, including
death, one hundred percent (100%) of the RSUs shall immediately vest upon such
termination; provided, however, that the termination of Participant’s membership
on the Board constitutes a “separation from service” within the meaning of
Section 409A (as defined in Section 4(b) of the Agreement) or such later time as
described in Section 4 of the Agreement. Further, in the event of a
Change in Control of the Company that constitutes a “change in control” within
the meaning of Section 409A, one hundred percent (100%) of the RSUs shall
immediately vest, subject to Participant’s continued service as a member of the
Board through the closing of the Change in Control.
** Important additional information on
vesting and forfeiture of the RSUs covered by this grant is contained in the
attached Agreement. Please be sure to read the entire
Agreement.
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By
Participant’s signature and the signature of the representative of Oncothyreon
Inc. (the “Company”)
below, Participant and the Company agree that this award of RSUs is granted
under and governed by the terms and conditions of the Plan and this Agreement,
including the Terms and Conditions of Restricted Share Unit Grant, attached
hereto as Exhibit
A, all of which are made a part of this document. Participant
has reviewed the Plan and this Agreement in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement
and fully understands all provisions of the Plan and
Agreement. Participant hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Administrator upon any
questions relating to the Plan and Agreement. Participant further
agrees to notify the Company upon any change in the residence address indicated
below.
| PARTICIPANT: | ONCOTHYREON INC. | |||
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Signature
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By
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Print
Name
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Title
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EXHIBIT
A
TERMS
AND CONDITIONS OF RESTRICTED SHARE UNIT GRANT
1. Grant. The
Company hereby grants to the individual named in the Notice of Grant of this
Agreement (“Participant”)
under the Plan an award of RSUs, subject to all of the terms and conditions in
this Agreement and the Plan, which is incorporated herein by
reference. Subject to Section 8 of the Plan, in the event of a
conflict between the terms and conditions of the Plan and the terms and
conditions of this Agreement, the terms and conditions of the Plan will
prevail.
2. Company’s
Obligation to Pay. Each RSU represents the right to receive a
Share on the vesting date (or at such later time as indicated in this
Agreement). Unless and until the RSUs vest, Participant will have no
right to receive Shares under such RSUs. Prior to actual distribution
of Shares pursuant to any vested RSUs, such RSUs will represent an unsecured
obligation of the Company, payable (if at all) only from the general assets of
the Company. When the RSUs are paid out to Participant, they will be
paid out in whole Shares only and the purchase price will be deemed paid by
Participant for each RSU through the past services rendered by Participant, and
will be subject to the appropriate tax reporting and, if applicable, appropriate
tax withholding, as set forth in Section 5 hereof.
3. Vesting
Schedule. Subject to Section 4 of this Agreement and Section 6
of the Plan, the RSUs awarded by this Agreement will vest in accordance with the
vesting provisions set forth in the Notice of Grant attached to this
Agreement. RSUs scheduled to vest on a certain date or upon the
occurrence of a certain condition will not vest in Participant in accordance
with any of the provisions of this Agreement, unless Participant will have been
continuously a member of the Board from the Date of Grant until the date such
vesting occurs.
4. Payment
after Vesting.
(a) Subject
to Section 5, any RSUs that vest will be paid to Participant (or in the event of
Participant’s death, to his or her properly designated beneficiary or estate) in
whole Shares. Subject to the provisions of Sections 4(b), 4(c) and
4(d), such vested RSUs shall be paid in whole Shares as soon as practicable
after vesting, but in each such case within thirty (30) days following the
vesting date. In no event will Participant be permitted, directly or
indirectly, to specify the taxable year of payment of any RSUs payable under
this Agreement.
(b) Change in Control. If the
vesting of all or a portion of the RSUs accelerate in the event of a Change in
Control and such Change in Control constitutes a “change in control” within the
meaning of Section 409A, then the payment of such accelerated RSUs shall be
paid no later than ten (10) business days following the closing of the Change in
Control. Any such payment shall be settled in Shares, unless
Participant specifies in a written election provided to the Company within five
(5) business days following the Change in Control to settle his or her vested
RSUs in cash equal to the Special Value (as described in Section 6(d) of the
Plan). Notwithstanding anything in the Plan or this Agreement to the
contrary, if the vesting of all or a portion of the RSUs accelerates pursuant to
any plan, agreement, resolutions or arrangement that provides for acceleration
in the event of a change in control that is not a “change in control” within the
meaning of Section 409A, then payment of the RSUs shall not be accelerated in
accordance with this Section 4(b) and shall otherwise continue to be subject to
the terms of this Agreement and the Plan. For purposes of this
Agreement, “Section 409A” means Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”),
and any proposed, temporary or final Treasury Regulations and Internal Revenue
Service guidance thereunder, as each may be amended from time to
time.
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(c) Termination
of Service. Notwithstanding anything in the Plan or this
Agreement to the contrary, if the vesting of the balance, or some lesser portion
of the balance, of the RSUs is accelerated in connection with Participant
ceasing to be as a member of the Board, such accelerated RSUs will not be
payable by virtue of such acceleration until and unless Participant has a
“separation from service” within the meaning of Section
409A. Further, notwithstanding anything in the Plan or this
Agreement to the contrary, if the vesting of the balance, or some lesser portion
of the balance, of the RSUs is accelerated in connection with Participant
ceasing to be as a member of the Board (provided that such cessation of service
is a “separation from service” within the meaning of Section 409A, as determined
by the Company), other than due to death, and if (x)
Participant is a “specified employee” within the meaning of Section 409A at the
time of such termination as a service provider and (y) the payment of such
accelerated RSUs will result in the imposition of additional tax under Section
409A if paid to Participant on or within the six (6) month period following
Participant’s termination as a service provider, then the payment of such
accelerated RSUs will not be made until the 30th day
following the date that is six (6) months following the date of Participant’s
termination as a service provider, unless Participant dies following his or her
termination as a service provider, in which case, the RSUs will be paid in
Shares to Participant’s estate or properly designated beneficiary as soon as
practicable following his or her death (in accordance with Section
4(d)).
(d) Death of
Participant. If the vesting of all or a portion of the RSUs
accelerate in the event of the death of Participant while a member of the Board,
then the payment of such accelerated RSUs shall be paid no later than the later
of (i) the end of the calendar year in which Participant dies or (ii) the
fifteenth (15th) day of
the third (3rd)
calendar month following Participant’s death. Any distribution or
delivery to be made to Participant under this Agreement will, if Participant is
then deceased, be made to Participant’s designated beneficiary, provided such
beneficiary has been designated prior to Participant’s death in a form
acceptable to the Administrator, or if no beneficiary survives Participant, the
administrator or executor of Participant’s estate (or such other person to whom
the RSUs are transferred pursuant to Participant’s will or in accordance with
the laws of descent and distribution). Any such transferee must
furnish the Company with (a) written notice of his or her status as
transferee, and (b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or regulations pertaining
to said transfer.
(e) Section
409A. It is the intent of this Agreement to comply with the
requirements of Section 409A so that none of the RSUs provided under this
Agreement or Shares issuable thereunder will be subject to the additional tax
imposed under Section 409A, and any ambiguities herein will be interpreted to so
comply.
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5. Withholding
of Taxes. Notwithstanding any contrary provision of this
Agreement, no certificate representing the Shares will be issued to Participant,
unless and until satisfactory arrangements (as determined by the Administrator)
will have been made by Participant with respect to the payment of income,
employment and other taxes which the Company determines must be withheld with
respect to such Shares. If Participant fails to make satisfactory
arrangements for the payment of any required tax withholding obligations
hereunder at the time any applicable RSUs otherwise are scheduled to vest,
Participant will permanently forfeit such RSUs and any right to receive Shares
thereunder and the RSUs will be returned to the Company at no cost to the
Company.
The
Administrator, in its sole discretion and pursuant to such procedures as it may
specify from time to time, may permit Participant to satisfy such tax
withholding obligation, in whole or in part (without limitation) by
(a) paying cash or remitting a check, (b) electing to have the Company
withhold otherwise deliverable Shares having a fair market value equal to the
minimum amount required to be withheld, (c) delivering to the Company
already vested and owned Shares having a fair market value equal to the amount
required to be withheld, (d) selling a sufficient number of such Shares
otherwise deliverable to Participant through such means as the Company may
determine in its sole discretion (whether through a broker or otherwise) equal
to the amount required to be withheld, or (e) a combination
thereof. To the extent determined appropriate by the Company in its
discretion, it will have the right (but not the obligation) to satisfy any tax
withholding obligations by reducing the number of Shares otherwise deliverable
to Participant. If Participant fails to make satisfactory
arrangements for the payment of any required tax withholding obligations
hereunder at the time any applicable RSUs otherwise are scheduled to vest,
Participant will permanently forfeit such RSUs and any right to receive Shares
thereunder and the RSUs will be returned to the Company at no cost to the
Company.
6. Rights as
Shareholder. Neither Participant nor any person claiming under
or through Participant will have any of the rights or privileges of a
shareholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares (which may be in book entry
form) will have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to Participant (including through
electronic delivery to a brokerage account). After such issuance,
recordation and delivery, Participant will have all the rights of a shareholder
of the Company with respect to voting such Shares and receipt of dividends and
distributions on such Shares.
7. No
Guarantee of Continued Service. PARTICIPANT
ACKNOWLEDGES AND AGREES THAT THE VESTING OF THE RSUS PURSUANT TO THE VESTING
SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A MEMBER OF THE BOARD AT THE
WILL OF THE COMPANY AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
AWARD OF RSUS OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER
ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED
HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS
OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A MEMBER OF THE BOARD FOR THE
VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND WILL NOT INTERFERE IN ANY WAY
WITH PARTICIPANT’S RIGHT OR THE RIGHT OF THE COMPANY TO TERMINATE PARTICIPANT’S
RELATIONSHIP AS A MEMBER OF THE BOARD AT ANY TIME, WITH OR WITHOUT
CAUSE.
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8. Address for
Notices. Any notice to be given to the Company under the terms
of this Agreement will be addressed to the Company, in care of its Corporate
Controller at Oncothyreon Inc., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other address as the Company may hereafter
designate in writing.
9. Grant is
Not Transferable. Except to the limited extent provided in
Section 4(d), this grant and the rights and privileges conferred hereby
will not be transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) and will not be subject to sale under
execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any
right or privilege conferred hereby, or upon any attempted sale under any
execution, attachment or similar process, this grant and the rights and
privileges conferred hereby immediately will become null and
void.
10. Binding
Agreement. Subject to the limitation on the transferability of
this grant contained herein, this Agreement will be binding upon and inure to
the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
11. Additional
Conditions to Issuance of Shares. The Company shall not be
required to issue any certificate or certificates for Shares hereunder prior to
fulfillment of all the following conditions: (a) the admission
of such Shares to listing on all stock exchanges on which such class of stock is
then listed; (b) the completion of any registration or other qualification
of such Shares under any U.S. state or federal law or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body, which the Administrator shall, in its absolute discretion, deem
necessary or advisable; (c) the obtaining of any approval or other
clearance from any U.S. state or federal governmental agency or any other
governmental regulatory body, which the Administrator shall, in its absolute
discretion, determine to be necessary or advisable; and (d) the lapse of
such reasonable period of time following the date of vesting of the RSUs as the
Administrator may establish from time to time for reasons of administrative
convenience. Where the Company determines that the delivery of the payment of
any Shares will violate federal securities laws or other applicable laws, the
Company will defer delivery until the earliest date at which the Company
reasonably anticipates that the delivery of Shares will no longer cause such
violation. The Company will make all reasonable efforts to meet the
requirements of any such state or federal law or securities exchange and to
obtain any such consent or approval of any such governmental
authority.
12. Restrictions
on Sale of Securities. The Shares issued as payment for vested
RSUs under this Agreement will be registered under U.S. federal securities laws
and will be freely tradable upon receipt. However, Participant’s
subsequent sale of the Shares may be subject to any market blackout-period that
may be imposed by the Company and must comply with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
policies, and any other applicable securities laws.
13. Plan
Governs. This Agreement is subject to all terms and provisions
of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan will govern. Capitalized terms used and not
defined in this Agreement will have the meaning set forth in the
Plan.
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14. Administrator
Authority. The Administrator will have the power to interpret
the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules (including, but not limited to, the
determination of whether or not any RSUs have vested). All actions
taken and all interpretations and determinations made by the Administrator in
good faith will be final and binding upon Participant, the Company and all other
interested persons. No member of the Administrator will be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan or this Agreement.
15. Electronic
Delivery. The Company may, in its sole discretion, decide to
deliver any documents related to RSUs awarded under the Plan or future RSUs that
may be awarded under the Plan by electronic means or request Participant’s
consent to participate in the Plan by electronic means. Participant
hereby consents to receive such documents by electronic delivery and agrees to
participate in the Plan through any on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
16. Captions. Captions
provided herein are for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
17. Agreement
Severable. In the event that any provision in this Agreement
will be held invalid or unenforceable, such provision will be severable from,
and such invalidity or unenforceability will not be construed to have any effect
on, the remaining provisions of this Agreement.
18. Entire
Agreement; Modifications to the Agreement. This Agreement
constitutes the entire understanding of the parties on the subjects
covered. Participant expressly warrants that he or she is not
accepting this Agreement in reliance on any promises, representations, or
inducements other than those contained herein. Modifications to this
Agreement or the Plan can be made only in an express written contract executed
by a duly authorized officer of the Company. Notwithstanding anything
to the contrary in the Plan or this Agreement, the Company reserves the right to
revise this Agreement as it deems necessary or advisable, in its sole discretion
and without the consent of Participant, to comply with Section 409A or to
otherwise avoid imposition of any additional tax or income recognition under
Section 409A in connection to this award of RSUs. Each payment and benefit payable under
this Agreement is intended to constitute separate payments for purposes of
Section 1.409A-2(b)(2) of the Treasury
Regulations.
19. Amendment,
Suspension or Termination of the Plan. By accepting this
award, Participant expressly warrants that he or she has received an award of
RSUs under the Plan, and has received, read and understood a description of the
Plan. Participant understands that the Plan is discretionary in
nature and may be amended, suspended or terminated by the Company at any
time.
20. Governing
Law. This Agreement will be governed by the laws of the State
of Washington, without giving effect to the conflict of law principles
thereof. For purposes of litigating any dispute that arises under
this award of RSUs or this Agreement, the parties hereby submit to and consent
to the jurisdiction of the State of Washington, and agree that such litigation
will be conducted in the courts of King County, Washington, or the federal
courts for the United States for the Western District of Washington, and no
other courts, where this award of RSUs is made and/or to be
performed.
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