Exhibit 10.5


 


CONSULTING
AGREEMENT


 


THIS CONSULTING AGREEMENT
is made between Poniard Pharmaceuticals, Inc. (hereinafter referred to as “Poniard”),
with addresses at 300 Elliott Avenue West, Suite 500, Seattle, Washington
98119, and Robert L. De Jager, MD (hereinafter
referred to as “Consultant”), with address at [address].


 


THE
PARTIES AGREE AS FOLLOWS:


 


1.                                       Effective Date. 
This Agreement shall be effective February 6, 2010.


 


2.                                       Term. 
The term of this Agreement shall be from February 6, 2010 through December 31,
2010.  Either party may terminate this
Agreement immediately with cause, or upon 30 days prior written notice without
cause.


 


3.                                       General Purpose. 
The general purpose of this Agreement is to engage Consultant to provide
clinical consulting services as may be requested by Dr. Michael Perry or
his designee.  Such services shall be
performed in conformance with professional standards for performing services of
a similar kind.


 


4.                                       Compensation. 
During the term of this Agreement, Poniard shall pay Consultant the sum
of $350 per hour once monthly upon receipt of an Invoice for the services
directed to the attention of Accounts Payable at Poniard.  The Invoice shall provide the date and a
brief description of the services rendered per day, and Poniard shall provide
payment for approved services within thirty days of receipt of such
Invoice.  In addition, Poniard shall
reimburse Consultant for actual and necessary out-of-pocket expenses incurred,
where such expenses are necessary and related to services rendered under this
Agreement; such expenses should be billed in the same Invoice submitted for
services.  Consultant’s fees are,
however, subject to a maximum of $40,000 for services over the term, which
maximum cannot be exceeded without the prior written approval of Poniard before
such services are rendered. In the event of early termination as provided for
in paragraph 2 hereof, Consultant shall invoice (and Poniard shall pay) for
services and expenses incurred through the date that notice is received.


 


5.                                       Independent Contractor. 
The parties understand and hereby acknowledge that nothing in this
Agreement shall be construed to create any relationship other than that of an
independent contractor relationship. 
Consultant is not an agent, employee, officer or trustee of Poniard, and
Consultant is not authorized to transact business, enter into agreements or
otherwise make commitments on behalf of Poniard.  Poniard will not pay or withhold federal,
state or local income tax or other payroll tax of any kind on behalf of
Consultant or Consultant’s employees. 
Consultant is not eligible for, not entitled to, and shall not
participate in, any of Poniard’s pension, health or other benefit plans, except
as described in the General Release and Waiver of Claims, including the Exhibit A
executed in conjunction with Consultant’s termination of employment with
Poniard.  Consultant is responsible for
the payment of all required payroll taxes, whether federal, state, or local in
nature, including, but not limited to income taxes, Social Security taxes,
Federal Unemployment Compensation taxes, and any other fees, charges, licenses,
or payments required by law.  Consultant
agrees, consistent with Consultant’s status as an independent contractor, that
Consultant will not apply for unemployment compensation benefits in connection
with the performance of consulting services. Consultant indemnifies Poniard and
holds it harmless against any fines, payments, damages, assessments, or
attorney fees in the event a court or administrative agency shall find that
Consultant is an employee of Poniard.


 


Consultant represents
that Consultant retains the rights to control the manner in which the
consulting services are performed and that Poniard is contracting for specified
accomplished tasks; that the consulting services are of a different nature than
the services normally performed by Poniard or that the consulting services will
be performed outside the Poniard facility; and that Consultant is pursuing work
in an independently established business of the same nature as the consulting
services.


 


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6.                                       Confidentiality.  All data,
materials and information submitted or made available to Consultant by Poniard
or by any other person or entity at the direction of Poniard, unless otherwise
publicly available, and all data, materials and information, and other work
developed by Consultant under this Agreement, shall be utilized by Consultant
in connection with this Agreement only, shall be maintained in confidence and
shall not be made available by Consultant to any other person or entity.  Consultant will ensure Consultant’s agents,
employees, officers, and trustees are bound to confidentiality of Poniard data,
materials and information to the same extent that Consultant is bound under
this Agreement.


 


7.                                       Ownership.


 


(a)                                  Poniard shall exclusively own all data,
information, and other work developed or obtained by Consultant pursuant to
this Agreement, either alone or with others, including all inventions, discoveries,
concepts and ideas, whether patentable or not, including but not limited to
articles, processes, methods, formulas, systems and techniques, as well as
improvements and derivations and know-how related thereto (hereinafter referred
to as “Inventions”).


(b)                                 Consultant hereby assigns to Poniard or
its designee all of Consultant’s right, title and interest in and to any
Inventions, any patent applications relating thereto, and any patents granted
thereon, and will execute any such formal Assignment documents that Poniard may
request from time to time.  Consultant
shall disclose such Inventions to Poniard promptly and in writing.  When requested, and at Poniard’s expense,
Consultant will assist Poniard or Poniard’s designee, in efforts to protect
Poniard’s proprietary and patent rights to such Inventions.


(c)                                  Immediately upon termination of this
Agreement for any reason, all such data, information, and other work, in
whatever form, shall be turned over to Poniard.


(d)                                 For purposes of this Agreement any copyrightable
work (hereinafter referred to as “Work”) developed in the course of performance
under this Agreement shall be deemed “work made for hire” under federal
copyright law, and all ownership rights to such Work belong to Poniard.


(e)                                  Should such Work not constitute a “work
made for hire” under copyright law, Consultant hereby grants, transfers,
assigns, and conveys to Poniard and its successors and assigns, the entire
right, title and interest in the Work or any part thereof, including but not
limited to the right to reproduce, prepare derivative works, distribute by
sale, license or other transfer; to perform publicly, to display and to secure
copyrights or patents and renewals, reissues and extensions of any such
copyrights or patents in the United States of America or any foreign country.


 


8.                                       Indemnification. 
Poniard shall hold Consultant harmless from and indemnify Consultant
from any and all liability, loss or damage resulting from failure of Poniard to
comply with applicable governmental requirements or from the negligence or
willful misconduct of Poniard and Poniard’s agents or employees; provided,
however, that the foregoing indemnity shall not apply to claims arising solely
out of the negligence or willful misconduct of Consultant.   Similarly, Consultant shall hold Poniard
harmless from and indemnify Poniard from any and all liability, loss or damage
resulting from the failure of Consultant to comply with applicable governmental
requirements or from the negligence or willful misconduct of Consultant,
Consultant’s agents or employees, pertaining to the services to be carried out
pursuant to this Agreement; provided, however, that the foregoing indemnity
shall not apply to claims arising solely out of the negligence or willful
misconduct of Poniard, its officers, employees or agents.


 


9.                                       Debarment.  Consultant
represents and warrants that neither Consultant or Consultant’s employees, nor
any other person retained by Consultant to perform the services under this
Agreement (1) is under investigation by the FDA for debarment action or is
presently debarred pursuant to the Generic Drug Enforcement Act of 1992, as
amended (21 U.S.C. Sec. 301, et seq), or (2) has a disqualification
hearing pending or has been disqualified by the FDA pursuant to 21 CFR Sec.
312.70 or its successor provisions.  In
addition, Consultant represents and warrants that Consultant has not engaged in
any conduct or activity which could lead to any of the above mentioned
disqualification or debarment actions. 
If during the term of this Agreement, Consultant or any person employed
or retained by Consultant to perform the services under this Agreement (1) comes
under investigation by FDA for debarment action or disqualification, (2) is
debarred or disqualified, or (3) engages in any conduct or activity which
could lead to any of the above-mentioned disqualification or debarment actions,
Consultant shall immediately 


 


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notify
Poniard.  For the purposes of this
section, reference to the FDA and the Generic Drug Enforcement Act shall also
be deemed a reference to any other governmental or regulatory authorities
having jurisdiction over the subject matter of the services under this
Agreement or any other laws and regulations application to such services.


 


10.                                 Conflict of Interest. 
Consultant certifies that Consultant does not have any conflict of
interest or other contractual impediment that could preclude Consultant from
carrying out Consultant’s duties and obligations under this Agreement.  Further, Consultant certifies that neither
Consultant nor Consultant’s agents, employees, officers or trustees have any
financial interest in Poniard, and will not benefit financially or otherwise by
results of Consultant’s services under this Agreement, other than referenced in
paragraphs 4 and 5 hereof.


 


11.                                 Insider Trading. 
Consultant acknowledges and understands that the purchase and sale of
securities on the basis of material nonpublic information, commonly referred to
as “inside information”, or the selective disclosure of inside information to
others who may trade, is prohibited by federal and state laws.  Consultant agrees to comply with all
securities laws and regulations, and Consultant will not use any inside
information gained through Consultant’s relationship with Poniard to trade in
the securities of Poniard or any other company to which the inside information
may apply.


 


12.                                 Compliance with Applicable
Laws.  Consultant warrants and represents that
Consultant will comply with all federal, state, and local laws applicable to
performance of the work under this Agreement.


 


13.                                 Authority and Adherence. 
Consultant warrants that Consultant has the authority to enter into this
Agreement and that entering into this Agreement is not restricted or prohibited
by any existing agreement to which Consultant is a party.  Further, Consultant shall require Consultant’s
officers, employees, affiliates, associates, agents, contractors and other
personnel to adhere to the terms of this Agreement.


 


14.                                 Assignment and Subcontract. 
This Agreement may not be assigned or subcontracted by Consultant
without the express written consent of Poniard.


 


15.                                 Advertisement. 
Consultant may not use the name Poniard Pharmaceuticals, Inc. or
any variation thereof for advertising or publicity purposes without first
obtaining the written consent of Poniard.


 


16.                                 Governing Law;
Jurisdiction.  This Agreement is governed by the laws of the
State of Washington, without regard to any conflicts-of-law principle that
directs the application of another jurisdiction’s laws.  Venue of any suit or proceeding arising out
of or relating to this Agreement shall lie exclusively in the state or federal
courts located in King County, Washington, and each party hereby irrevocably
and unconditionally submits to the exclusive jurisdiction of such courts.  Further, if Poniard is reasonably required to
initiate legal action under this Agreement, Poniard shall be entitled to
recover its reasonable attorney’s fees and costs from the Recipient.


 


17.                                 No Presumption Against
Drafter.  For purposes of this Agreement, the parties
hereby waive any rule of construction that requires that ambiguities in
this Agreement be construed against the drafter.


 


18.                                 Notices. 
Each notice required or permitted to be given pursuant to this Agreement
shall be in writing and shall be deemed sufficiently given if delivered by fax
or by an express/overnight delivery service provided by a commercial carrier,
properly addressed to the other party at the address designated in the first paragraph
of this Agreement, or to such other address as may be designated in
writing.  Notices shall be considered
received on the date faxed or on the date of the dated receipt from the
commercial carrier.


 


19.                                 Waiver. 
A delay or failure by either party to exercise any right under this
Agreement will not constitute a waiver of that or any similar or future right.


 


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20.                                 Severability. 
If any provision of this Agreement is declared invalid by any Court,
then such provision shall be deemed automatically modified to conform to the
requirements for validity as declared at such time, and as so modified, shall
be deemed a provision of this Agreement as though originally included herein.  In the event that the provision invalidated
is of such a nature that it cannot be modified, the provision shall be deemed
deleted from this Agreement as though the provision had never been included
herein.  In either case, the remaining
provisions of this Agreement shall remain in effect.


 


21.                                 Survival of Obligations. 
The provisions of paragraph 6, 7, 8, 11, 16 and 19 shall survive
termination or expiration of this Agreement.


 


22.                                 Counterparts/Facsimile.  This Agreement
may be signed in separate counterparts, and PDF or facsimile signatures will be
accepted as originals


 


23.                                 Entire Agreement. 
This Agreement represents the entire understanding of the parties and
may not be modified except by written agreement of the parties and supersedes
all prior written and/or oral agreements.


 


 




	
  Poniard
  Pharmaceuticals, Inc.

  	
   

  	
  Consultant

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Anna Lewak
  Wight

  	
   

  	
   

  	
  Name: Robert L. De
  Jager, MD

  
	
   

  	
  Anna Lewak Wight

  	
   

  	
   

  
	
   

  	
  Vice President, Legal

  	
   

  	
   

  
	
   

  	
   

  	
  Signature:

  	
  /s/ Robert L. De Jager, MD

  	
   

  
							






 


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