**Exhibit10.29**

 

**NEORX CORPORATION**

**CHANGE OF CONTROLAGREEMENT (CEO/COO)**

** **

THIS CHANGE OF CONTROL AGREEMENT (CEO/COO) (this “***Agreement***”), dated asof February 12, 2003, is entered into by and between NEORX CORPORATION, aWashington corporation (as supplemented by Section 13, the “***Company***”), and DOUGB. GIVEN, M.D., Ph. D. (the “***Executive***”).

 

The Board of Directors of the Company (the “***Board***”) has determined that it is in the best interestsof the Company and its shareholders to ensure that the Company will have thecontinued dedication of the Executive, notwithstanding the possibility, threator occurrence of a Change of Control (as defined in Section 1 hereof) of theCompany.  The Board believes it isimperative to diminish the inevitable distraction of the Executive arising fromthe personal uncertainties and risks created by a pending or threatened Changeof Control, to encourage the Executive’s full attention and dedication to theCompany currently and in the event of any threatened or pending Change of Control,and to provide the Executive with reasonable compensation and benefitarrangements upon a Change of Control.

 

In order to accomplish these objectives, the Board hascaused the Company to enter into this Agreement.

 

**1.**                                      **Definitions**

 

1.1                                 “***Change of Control***” shall have the definition set forthin Appendix A hereto, which is hereby incorporated by reference.

 

1.2                                 “***Change of Control Date***” shall mean the first date onwhich a Change of Control occurs.

 

1.3                                 “***Employment Period***” shall mean the two (2) year periodcommencing on the Change of Control Date and ending on the second anniversaryof such date.

 

**2.**                                      **Term**

 

The initial term of this Agreement (“***Initial Term***”) shallbe for a period of one (1) year from the date of this Agreement as firstappearing above; provided, however, that this Agreement shall automaticallyrenew for successive additional one (1) year periods (“***Renewal Terms***”)unless notice of nonrenewal is given by either party to the other at leastninety (90) days prior to the end of the Initial Term or any Renewal Term, andprovided further that if a Change in Control occurs during the Term, the

 

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Term shall automatically extend for the duration of the EmploymentPeriod.  The “***Term***” of this Agreement shall be the InitialTerm plus all Renewal Terms and, if applicable, the duration of the EmploymentPeriod.  At the end of the Term, thisAgreement shall terminate without further action by either the Company or theExecutive.

 

**3.**                                      **Employment**

 

### **3.1**                               EmploymentPeriod

 

During the Employment Period, the Company herebyagrees to continue the Executive in its employ or in the employ of itsaffiliated companies, and the Executive hereby agrees to remain in the employof the Company or its affiliated companies, in accordance with the terms andprovisions of this Agreement; provided, however, that either the Company or theExecutive may terminate the employment relationship subject to the terms ofthis Agreement.

 

**3.2**                               **Position and Duties**

 

During the Employment Period, the Executive’sposition, authority, duties and responsibilities shall be at least commensuratein all material respects with the most significant of those held, exercised andassigned at any time during the ninety (90) day period immediately precedingthe Change of Control Date.

 

**3.3**                               **Location**

 

During the Employment Period, the Executive’s servicesshall be performed at the Company’s headquarters on the Change of Control Dateor any office that is subsequently designated as the headquarters of theCompany and is less than thirty (30) miles from such location.

 

**3.4**                               **Employment at Will**

 

The Executive and the Company acknowledge that, exceptas may otherwise be provided under any other written agreement between theExecutive and the Company, the employment of the Executive by the Company orits affiliated companies is “at will” and may be terminated by either theExecutive or the Company or its affiliated companies at any time with orwithout cause.  Moreover, if prior tothe Change of Control Date, the Executive’s employment with the Company or itsaffiliated companies terminates for any reason, then the Executive shall haveno further rights under this Agreement; provided, however, that the Company maynot avoid liability for any termination payments that would have been requiredduring the Employment

 

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Period pursuant to Section 8 hereof by terminating the Executiveprior to the Employment Period where such termination is carried out inanticipation of a Change of Control and the principal motivating purpose is toavoid liability for such termination payments.

 

**4.**                                      **Attention And Effort**

 

During the Employment Period, and excluding anyperiods of vacation and sick leave to which the Executive is entitled, theExecutive will devote all of his productive time, ability, attention and effortto the business and affairs of the Company and the discharge of theresponsibilities assigned to him hereunder, and will use his reasonable bestefforts to perform faithfully and efficiently such responsibilities.  It shall not be a violation of thisAgreement for the Executive to (a) serve on corporate, civic or charitableboards or committees, (b) deliver lectures, fulfill speaking engagementsor teach at educational institutions, (c) manage personal investments, or(d) engage in activities permitted by the policies of the Company or asspecifically permitted by the Company, so long as such activities do notsignificantly interfere with the performance of the Executive’sresponsibilities in accordance with this Agreement.  It is expressly understood and agreed that to the extent any suchactivities have been conducted by the Executive prior to the Employment Period,the continued conduct of such activities (or the conduct of activities similarin nature and scope thereto) during the Employment Period shall not thereafterbe deemed to interfere with the performance of the Executive’s responsibilitiesto the Company.

 

**5.**                                      **Compensation**

 

As long as the Executive remains employed by theCompany during the Employment Period, the Company agrees to pay or cause to bepaid to the Executive, and the Executive agrees to accept in exchange for theservices rendered hereunder by him, the following compensation:

 

**5.1**                               **Salary**

 

The Executive shall receive an annual base salary (the“***Annual Base Salary***”), at least equal to the annualsalary established by the Board or the Compensation Committee of the Board (the“***Compensation Committee***”) or the Chief Executive Officerfor the fiscal year in which the Change of Control Date occurs.  The Annual Base Salary shall be paid insubstantially equal installments and at the same intervals as the salaries ofother executives of the Company are paid. The Board or the Compensation Committee or the Chief Executive Officer shallreview the Annual Base Salary at least annually and shall determine in goodfaith and consistent with any generally applicable Company policy any increasesfor future years.

 

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**5.2**                               **Bonus**

 

In addition to the Annual Base Salary, the Executive shallbe awarded, for each fiscal year ending during the Employment Period, an annualbonus (the “***Annual Bonus***”) in cash atleast equal to the average annualized (for any fiscal year consisting of lessthan twelve (12) full months) bonus paid or payable (including by reason of anydeferral and including the value of any stock awards and the compensationexpense disclosed in the Company’s financial statements for the grant of anystock options) to the Executive by the Company and its affiliated companies inrespect of the three fiscal years immediately preceding the fiscal year inwhich the Change of Control Date occurs. Each Annual Bonus shall be paid no later than ninety (90) days after theend of the fiscal year for which the Annual Bonus is awarded, unless theExecutive shall elect to defer the receipt of the Annual Bonus.

 

**6.**                                      **Benefits**

 

**6.1**                               **Incentive, Retirement and Welfare Benefit Plans;Vacation**

 

During the Employment Period, the Executive shall beentitled to participate, subject to and in accordance with applicableeligibility requirements, in such fringe benefit programs as shall be generallymade available to other executives of the Company and its affiliated companiesfrom time to time during the Employment Period by action of the Board (or anyperson or committee appointed by the Board to determine fringe benefit programsand other emoluments), including, without limitation, paid vacations; any stockpurchase, savings or retirement plan, practice, policy or program; and allwelfare benefit plans, practices, policies or programs (including, withoutlimitation, medical, prescription, dental, disability, salary continuance,employee life, group life, accidental death and travel accident insurance plansor programs).

 

**6.2**                               **Expenses**

 

During the Employment Period, the Executive shall beentitled to receive prompt reimbursement for all reasonable employment expensesincurred by him in accordance with the policies, practices and procedures ofthe Company and its affiliated companies in effect for the executives of theCompany and its affiliated companies during the Employment Period.

 

**7.**                                      **Termination**

 

During the Employment Period, employment of theExecutive may be terminated as follows, but, in any case, the nondisclosureprovisions set forth in

 

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Section 10 hereof shall survive the termination of this Agreementand the termination of the Executive’s employment with the Company:

 

**7.1**                               **By the Company or the Executive**

 

At any time during the Employment Period, the Companymay terminate the employment of the Executive with or without Cause (as definedbelow), and the Executive may terminate his employment for Good Reason (asdefined below) or for any reason, upon giving the Notice of Termination (asdefined below).

 

**7.2**                               **Automatic Termination**

 

This Agreement and the Executive’s employment duringthe Employment Period shall terminate automatically upon the death or TotalDisability of the Executive.  The term “***Total Disability***” as used herein shall mean theExecutive’s inability (with such accommodation as may be required by law andwhich places no undue burden on the Company), as determined by a physicianselected by the Company and acceptable to the Executive, to perform the dutiesset forth in Section 3.2 hereof for a period or periods aggregating twelve(12) weeks in any three hundred sixty-five (365) day period as a result ofphysical or mental illness, loss of legal capacity or any other cause beyondthe Executive’s control, unless the Executive is granted a leave of absence bythe Board.  The Executive and theCompany hereby acknowledge that the duties specified in Section 3.2 hereofare essential to the Executive’s position and that Executive’s ability toperform those duties is the essence of this Agreement.

 

**7.3**                               **Notice of Termination**

 

Any termination by the Company or by the Executiveduring the Employment Period shall be communicated by the Notice of Terminationto the other party given in accordance with Section 12 hereof.  The term “***Noticeof Termination***” shall mean a written notice that(a) indicates the specific termination provision in this Agreement reliedupon and (b) to the extent applicable, sets forth in reasonable detail thefacts and circumstances claimed to provide a basis for termination of theExecutive’s employment under the provision so indicated.  The failure by the Executive or the Companyto set forth in the Notice of Termination any fact or circumstance thatcontributes to a showing of Good Reason or Cause shall not waive any right ofthe Executive or the Company hereunder or preclude the Executive or the Companyfrom asserting such fact or circumstance in enforcing the Executive’s or theCompany’s rights hereunder.

 

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**7.4**                               **Date of Termination**

 

During the Employment Period, “***Dateof Termination***” means (a) if the Executive’s employment isterminated by reason of death, at the end of the calendar month in which theExecutive’s death occurs, (b) if the Executive’s employment is terminatedby reason of Total Disability, immediately upon a determination by theCompany of the Executive’s Total Disability, and (c) in all other cases,ten (10) days after the date of personal delivery or mailing of the Notice ofTermination.  The Executive’s employmentand performance of services will continue during such ten (10) day period;provided, however, that the Company may, upon notice to the Executive andwithout reducing the Executive’s compensation during such period, excuse theExecutive from any or all of his duties during such period.

 

**8.**                                      **Termination Payments**

 

In the event of termination of the Executive’semployment during the Employment Period, all compensation and benefits setforth in this Agreement shall terminate except as specifically provided in thisSection 8.

 

**8.1**                               **Termination by the Company Other Than for Cause or bythe Executive for Good Reason**

 

If during the Employment Period the Company terminatesthe Executive’s employment other than for Cause or the Executive terminates hisemployment for Good Reason, the Executive shall be entitled to:

 

(a)                                  receivepayment of the following accrued obligations (the “***AccruedObligations***”):

 

(i)                                     theAnnual Base Salary through the Date of Termination to the extent nottheretofore paid;

 

(ii)                                  theproduct of (x) the Annual Bonus payable with respect to the fiscal year inwhich the Date of Termination occurs and (y) a fraction the numerator of whichis the number of days in the current fiscal year through the Date ofTermination, and the denominator of which is three hundred sixty-five (365);and

 

(iii)                               any compensationpreviously deferred by the Executive (together with accrued interest orearnings thereon, if any) and any accrued vacation pay that would be payableunder the Company’s standard policy, in each case to the extent not theretoforepaid;

 

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(b)                                 anamount as severance pay equal to the Annual Base Salary for the fiscal year inwhich the Date of Termination occurs, subject to payment and potentialreduction as set forth in Section 8.5 hereof;

 

(c)                                  forone year after the Date of Termination or until the Executive qualifies forcomparable medical and dental insurance benefits from another employer,whichever occurs first, the Company shall pay the Executive’s premiums forhealth insurance benefit continuation for the Executive and his family members,if applicable, which the Company provides to the Executive under the provisionsof the federal Consolidated Omnibus Budget Reconciliation Act of 1985, asamended (“***COBRA***”), to the extent thatthe Company would have paid such premiums had the Executive remained employedby the Company (such continued payment is hereinafter referred to as “***COBRA Continuation***”); and

 

(d)                                 immediatevesting of all outstanding stock options previously granted to the Executive bythe Company.

 

**8.2**                               **Termination for Cause or Other Than for Good Reason**

 

If during the Employment Period the Executive’semployment shall be terminated by the Company for Cause or by the Executive forother than Good Reason, this Agreement shall terminate without furtherobligation on the part of the Company to the Executive, other than theCompany’s obligation to pay the Executive (a) the Annual Base Salarythrough the Date of Termination, (b)  the amount of any compensation previouslydeferred by the Executive, and (c) any accrued vacation pay that would bepayable under the Company’s standard policy, in each case to the extenttheretofore unpaid.

 

**8.3**                               **Expiration of Term**

 

In the event the Executive’s employment is not terminatedprior to expiration of the Term, this Agreement shall terminate without furtherobligation on the part of the Company to the Executive, other than theCompany’s obligation to pay the Executive the product of (a) the AnnualBonus payable with respect to the fiscal year in which the Term expired and(b) a fraction the numerator of which is the number of days in the currentfiscal year through the end of the Term and the denominator of which is threehundred sixty-five (365).

 

**8.4**                               **Termination Because of Death or Total Disability**

 

If during the Employment Period the Executive’semployment is terminated by reason of the Executive’s death or TotalDisability, this Agreement shall terminate

 

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automatically without further obligation on the part of the Company tothe Executive or his legal representatives under this Agreement, other than theCompany’s obligation to pay the Executive the Accrued Obligations (which shallbe paid to the Executive’s estate or beneficiary, as applicable in the case ofthe Executive’s death), and to provide COBRA Continuation.

 

**8.5**                               **Payment Schedule and Offset for Other Earnings**

 

All payments of Accrued Obligations, or any portionthereof payable pursuant to this Section 8, shall be made to the Executivewithin ten (10) working days of the Date of Termination.  Any payments payable to the Executivepursuant to Section 8.1(b) hereof shall be made to the Executive in theform of salary continuation, payable at normal payroll intervals during the one(1) year severance period, and subject to offset for other earnings of theExecutive in respect of the one (1) year severance period as follows:

 

(a)                                  TheExecutive shall have no affirmative duty to seek other employment or otherwisemitigate lost earnings during the one (1) year severance period.

 

(b)                                 TheExecutive shall disclose to the Company any earnings received (or that theExecutive had the right to receive) from employment, consulting or performanceof other personal services during the one (1) year severance period, and thesource(s) of such earnings.

 

(c)                                  TheCompany, in each payroll period that a severance payment is due, shall have theright to offset on a dollar-for-dollar basis all such earnings that theExecutive received or had the right to receive during that payroll period.

 

(d)                                 Inthe event the Company disputes whether Good Reason existed for the Executive toterminate his employment for Good Reason, the Company shall pay salarycontinuation as provided above in this Section 8.5 until the earliest of(i) settlement by the parties, (ii) determination by arbitration inaccordance with Section 17 hereof that Good Reason did not exist, and(iii) completion of the payments required by this Section 8.5 andSection 8.1(b) hereof.  If, pursuantto Section 17 hereof, an arbitrator determines that Good Reason did notexist, the arbitrator shall also decide whether the Executive had a reasonable,good-faith basis for claiming that there was Good Reason to terminate.  If the arbitrator determines that there wasnot such a basis, the Executive shall be obligated to repay promptly to theCompany the salary continuation payments; if the arbitrator determines thatthere was such a basis, the Executive shall not be obligated to repay thesalary continuation.

 

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**8.6**                               **Cause**

 

For purposes of this Agreement, “***Cause***”means cause given by the Executive to the Company and shall include, withoutlimitation, the occurrence of one (1) or more of the following events:

 

(a)                                  aclear refusal to carry out any material lawful duties of the Executive or anydirections of the Board or senior management of the Company, all reasonablyconsistent with the duties described in Section 3.2 hereof;

 

(b)                                 persistentfailure to carry out any lawful duties of the Executive described in Section3.2 hereof or any directions of the Board or senior management reasonablyconsistent with the duties herein set forth to be performed by the Executive,provided, however, that the Executive has been given reasonable notice andopportunity to correct any such failure;

 

(c)                                  violationby the Executive of a state or federal criminal law involving the commission ofa crime against the Company or any other criminal act involving moralturpitude;

 

(d)                                 currentabuse by the Executive of alcohol or controlled substances; deception, fraud,misrepresentation or dishonesty by the Executive; or any incident materiallycompromising the Executive’s reputation or ability to represent the Companywith investors, customers or the public; or

 

(e)                                  anyother material violation of any provision of this Agreement by the Executive,subject to the notice and opportunity-to-cure requirements of Section 11hereof.

 

**8.7**                               **Good Reason**

 

For purposes of this Agreement, “***GoodReason***” means

 

(a)                                  theassignment to the Executive of any duties materially inconsistent with theExecutive’s position, authority, duties or responsibilities as contemplated bySection 3.2 hereof or any other action by the Company that results in amaterial diminution in such position, authority, duties or responsibilities,excluding for this purpose an isolated and inadvertent action not taken in badfaith and that is remedied by the Company promptly after receipt of noticethereof given by the Executive;

 

(b)                                 anyfailure by the Company to comply with any of the provisions of Section 5or Section 6 hereof, other than an isolated and inadvertent failure nottaken

 

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in bad faith and that is remedied by the Company promptly after receiptof notice thereof given by the Executive;

 

(c)                                  theCompany’s requiring the Executive to be based at any office or location otherthan that described in Section 3.3 hereof;

 

(d)                                 anyfailure by the Company to comply with and satisfy Section 13 hereof;provided, however, that the Company’s successor has received at least ten (10)days’ prior written notice from the Company or the Executive of therequirements of Section 13 hereof; or

 

(e)                                  anyother material violation of any provision of this Agreement by the Company,subject to the notice and opportunity-to-cure requirements of Section 11hereof.

 

**8.8**                               **Excess Parachute Limitation**

 

If any portion of the payments or benefits for theExecutive under this Agreement or any other agreement or benefit plan of theCompany (including stock option plan) would be characterized as an “excessparachute payment” to the Executive under Section 280G of the InternalRevenue Code of 1986, as amended (the “***Code***”), theExecutive shall be paid any excise tax that the Executive owes underSection 4999 of the Code as a result of such characterization, such excisetax to be paid to the Executive at least ten (10) days prior to the date thathe is obligated to make the excise tax payment.  The determination of whether and to what extent any payments orbenefits would be “excess parachute payments” and the date by which any excisetax shall be due, shall be determined in writing by recognized tax counselselected by the Company and reasonably acceptable to the Executive.

 

**9.**                                      **Representations, Warranties and Other Conditions**

 

In order to induce the Company to enter into thisAgreement, the Executive represents and warrants to the Company as follows:

 

**9.1**                               **Health**

 

The Executive is in good health and knows of nophysical or mental disability that, with any accommodation that may be requiredby law and that places no undue burden on the Company, would prevent him fromfulfilling his obligations hereunder. The Executive agrees, if the Company requests, to submit to reasonableperiodic medical examinations by a physician or physicians designated by, paidfor and

 

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arranged by the Company.  TheExecutive agrees that the examination’s medical report shall be provided to theCompany.

 

**9.2**                               **No Violation of Other Agreements**

 

The Executive represents that neither the executionnor the performance of this Agreement by the Executive will violate or conflictin any way with any other agreement by which the Executive may be bound.

 

**10.**                               **Nondisclosure; Return of Materials**

 

**10.1**                        **Nondisclosure**

 

Except as required by his employment with the Company,the Executive will not, at any time during the term of employment by theCompany, or at any time thereafter, directly, indirectly or otherwise, use,communicate, disclose, disseminate, lecture upon or publish articles relatingto any confidential, proprietary or trade secret information without the priorwritten consent of the Company.  TheExecutive understands that the Company will be relying on this Agreement incontinuing the Executive’s employment, paying him compensation, granting himany promotions or raises, or entrusting him with any information that helps theCompany compete with others.

 

**10.2**                        **Return of Materials**

 

All documents, records, notebooks, notes, memoranda,drawings or other documents made or compiled by the Executive at any time, orin his possession, including any and all copies thereof, shall be the propertyof the Company and shall be held by the Executive in trust and solely for thebenefit of the Company, and shall be delivered to the Company by the Executiveupon termination of employment or at any other time upon request by theCompany.

 

**11.**                               **Notice and Cure of Breach**

 

Whenever a breach of this Agreement by either party isrelied upon as justification for any action taken by the other party pursuantto any provision of this Agreement, other than clause (a), (b), (c) or (d)of Section 8.6 hereof, before such action is taken, the party assertingthe breach of this Agreement shall give the other party at least twenty (20)days’ prior written notice of the existence and the nature of such breachbefore taking further action hereunder and shall give the party purportedly inbreach of this Agreement the opportunity to correct such breach during thetwenty (20) day period.

 

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**12.**                               **Form of Notice**

 

Every notice required by the terms of this Agreementshall be given in writing by serving the same upon the party to whom it wasaddressed personally or by registered or certified mail, return receiptrequested, at the address set forth below or at such other address as mayhereafter be designated by notice given in compliance with the terms hereof:

 
| If to the Executive: | 133 Burns Avenue                        |
|----------------------|-----------------------------------------|
|                 | Atherton, CA 94027                      |
|                 | Attn:  Doug  B. Given, M.D., Ph.D. |
|                 |                                    |
| If to the Company:   | NeoRx Corporation                       |
|                 | 410 West Harrison                       |
|                 | Seattle, Washington  98119         |
|                 | Attn:  President                   |
|                 |                                    |
| With a copy to:      | Perkins Coie LLP                        |
|                 | 1201 Third Avenue, 40th Floor           |
|                 | Seattle, Washington 98101-3099          |
|                 | Attn:  James R. Lisbakken          |

 

Except as set forth in Section 7.4 hereof, ifnotice is mailed, such notice shall be effective upon mailing.

 

**13.**                               **Assignment**

 

This Agreement is personal to the Executive and shallnot be assignable by the Executive.

 

The Company shall assign to and require any successor(whether direct or indirect, by purchase, merger, consolidation or otherwise)to all or substantially all the business and/or assets of the Company to assumeexpressly and agree to perform this Agreement in the same manner and to thesame extent that the Company would be required to perform it if no suchsuccession had taken place.  As used inthis Agreement, “***Company***” shall mean NeoRxCorporation and any successor to its business and/or assets as aforesaid thatassumes and agrees to perform this Agreement by operation of law, orotherwise.  All the terms and provisionsof this Agreement shall be binding upon and inure to the benefit of and beenforceable by the parties hereto and their respective successors and permittedassigns.

 

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**14.**                               **Waivers**

 

No delay or failure by any party hereto in exercising,protecting or enforcing any of its rights, titles, interests or remedieshereunder, and no course of dealing or performance with respect thereto, shallconstitute a waiver thereof.  Theexpress waiver by a party hereto of any right, title, interest or remedy in aparticular instance or circumstance shall not constitute a waiver thereof inany other instance or circumstance.  Allrights and remedies shall be cumulative and not exclusive of any other rightsor remedies.

 

**15.**                               **Amendments In Writing**

 

No amendment, modification, waiver, termination ordischarge of any provision of this Agreement, or consent to any departuretherefrom by either party hereto, shall in any event be effective unless thesame shall be in writing, specifically identifying this Agreement and theprovision intended to be amended, modified, waived, terminated or dischargedand signed by the Company and the Executive, and each such amendment,modification, waiver, termination or discharge shall be effective only in thespecific instance and for the specific purpose for which given.  No provision of this Agreement shall bevaried, contradicted or explained by any oral agreement, course of dealing orperformance or any other matter not set forth in an agreement in writing andsigned by the Company and the Executive.

 

**16.**                               **Applicable Law**

 

This Agreement shall in all respects, including allmatters of construction, validity and performance, be governed by, andconstrued and enforced in accordance with, the laws of the State of Washington,without regard to any rules governing conflicts of laws.

 

**17.**                               **Arbitration; Attorneys’ Fees**

 

Except in connection with enforcing Section 10hereof, for which legal and equitable remedies may be sought in a court of law,any dispute arising under this Agreement shall be subject to arbitration.  The arbitration proceeding shall be conductedin accordance with the Commercial Arbitration Rules of the American ArbitrationAssociation (the “***AAA Rules***”) then in effect,conducted by one arbitrator either mutually agreed upon or selected inaccordance with the AAA Rules.  Thearbitration shall be conducted in King County, Washington, under thejurisdiction of the Seattle office of the American ArbitrationAssociation.  The arbitrator shall haveauthority only to interpret and apply the provisions of this Agreement, andshall have no authority to add to, subtract from or otherwise modify the termsof this Agreement.

 

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Any demand for arbitration must be made within sixty (60) days of theevent(s) giving rise to the claim that this Agreement has been breached.  The arbitrator’s decision shall be final andbinding, and each party agrees to be bound to by the arbitrator’s award,subject only to an appeal therefrom in accordance with the laws of the State ofWashington.  Either party may obtainjudgment upon the arbitrator’s award in the Superior Court of King, County,Washington.

 

If it becomes necessary to pursue or defend any legalproceeding, whether in arbitration or court, in order to resolve a disputearising under this Agreement, the prevailing party in any such proceeding shallbe entitled to recover its reasonable costs and attorneys’ fees.

 

**18.**                               **Severability**

 

If any provision of this Agreement shall be heldinvalid, illegal or unenforceable in any jurisdiction, for any reason,including, without limitation, the duration of such provision, its geographicalscope or the extent of the activities prohibited or required by it, then, tothe full extent permitted by law, (a) all other provisions hereof shallremain in full force and effect in such jurisdiction and shall be liberallyconstrued in order to carry out the intent of the parties hereto as nearly asmay be possible, (b) such invalidity, illegality or unenforceability shallnot affect the validity, legality or enforceability of any other provisionhereof, and (c) any court or arbitrator having jurisdiction thereovershall have the power to reform such provision to the extent necessary for suchprovision to be enforceable under applicable law.

 

**19.**                               **Entire Agreement**

 

This Agreement constitutes the entire agreementbetween the Company and the Executive with respect to the subject matterhereof, and all prior or contemporaneous oral or written communications,understandings or agreements between the Company and the Executive with respectto such subject matter are hereby superseded and nullified in their entireties,except that the Proprietary Information and Invention Agreement between theCompany and the Executive shall continue in full force and effect to the extentnot superseded by Section 10 hereof.

 

**20.**                               **Withholding**

 

The Company may withhold from any amounts payableunder this Agreement such federal, state or local taxes as shall be required tobe withheld pursuant to any applicable law or regulation.

 

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**21.**                               **Counterparts**

 

This Agreement may be executed in counterparts, eachof which counterparts shall be deemed an original, but all of which togethershall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties have executed andentered into this Agreement effective on the date first set forth above.

 
|   | **NEORX  CORPORATION** |
|--------|------------------------|
|   |                   |
|   |                   |
|   | By:                    | /s/  LINDA T. FINDLAY |
|   |                   | Name: | Linda  T. Findlay |
|   |                   | Its: | Vice  President, Human Resources |
|   |                   |
|   |                   |
|   | **EXECUTIVE**          |
|   |                   |
|   |                   |
|   | By:                    | /s/  DOUGLASS B. GIVEN |
|   |                   | Name:  Douglass B. Given, M.D., Ph.D. |
|        |                        |  |  |  |

 

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**APPENDIX A**

 

For purposes of this Agreement, a “***Changeof Control***” shall mean:

 

(a)                                  A“***Board Change***” that, for purposes of this Agreement,shall have occurred if a majority (excluding vacant seats) of the seats on theBoard are occupied by individuals who were neither (i) nominated by amajority of the Incumbent Directors nor (ii) appointed by directors sonominated.  An “***IncumbentDirector***” is a member of the Board who has been either(i) nominated by a majority of the directors of the Company then in officeor (ii) appointed by directors so nominated, but excluding, for thispurpose, any such individual whose initial assumption of office occurs as aresult of either an actual or threatened election contest (as such terms areused in Rule 14a-11 of Regulation 14A promulgated under the SecuritiesExchange Act of 1934, as amended (the “***Exchange Act***”)) orother actual or threatened solicitation of proxies or consents by or on behalfof a Person (as hereinafter defined) other than the Board; or

 

(b)                                 Theacquisition by any individual, entity or group (within the meaning ofSection 13(d)(3) or 14(d)(2) of the Exchange Act) (a “***Person***”)of beneficial ownership (within the meaning of Rule 13d-3 promulgated under theExchange Act) of (i) twenty percent (20%) or more of either (A) thethen outstanding shares of Common Stock of the Company (the “***OutstandingCompany Common Stock***”) or (B) the combined voting power ofthe then outstanding voting securities of the Company entitled to votegenerally in the election of directors (the “***OutstandingCompany Voting Securities***”), in the case of either (A) or(B) of this clause (i), which acquisition is not approved in advance by amajority of the Incumbent Directors, or (ii) thirty-three percent (33%) ormore of either (A) the Outstanding Company Common Stock or (B) theOutstanding Company Voting Securities, in the case of either (A) or (B) ofthis clause (ii), which acquisition is approved in advance by a majority of theIncumbent Directors; provided, however, that the following acquisitions shallnot constitute a Change of Control: (x) any acquisition by the Company, (y) any acquisition by anyemployee benefit plan (or related trust) sponsored or maintained by the Companyor any corporation controlled by the Company, or (z) any acquisition byany corporation pursuant to a reorganization, merger or consolidation, if,following such reorganization, merger or consolidation, the conditionsdescribed in clauses (i), (ii) and (iii) of subsection (c) of thisAppendix A are satisfied; or

 

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(c)                                  Approvalby the shareholders of the Company of a reorganization, merger orconsolidation, in each case, unless, immediately following such reorganization,merger or consolidation, (i) more than sixty percent (60%) of,respectively, the then outstanding shares of common stock of the corporationresulting from such reorganization, merger or consolidation and the combinedvoting power of the then outstanding voting securities of such corporationentitled to vote generally in the election of directors is then beneficiallyowned, directly or indirectly, by all or substantially all the individuals andentities who were the beneficial owners, respectively, of the OutstandingCompany Common Stock and the Outstanding Company Voting Securities immediatelyprior to such reorganization, merger or consolidation in substantially the sameproportion as their ownership immediately prior to such reorganization, mergeror consolidation of the Outstanding Company Common Stock and the OutstandingCompany Voting Securities, as the case may be, (ii) no Person (excludingthe Company, any employee benefit plan (or related trust) of the Company orsuch corporation resulting from such reorganization, merger or consolidationand any Person beneficially owning, immediately prior to such reorganization,merger or consolidation, directly or indirectly, thirty-three percent (33%) ormore of the Outstanding Company Common Stock or the Outstanding Company VotingSecurities, as the case may be) beneficially owns, directly or indirectly,thirty-three percent (33%) or more of, respectively, the then outstandingshares of common stock of the corporation resulting from such reorganization,merger or consolidation or the combined voting power of the then outstandingvoting securities of such corporation entitled to vote generally in theelection of directors, and (iii) at least a majority of the members of theboard of directors of the corporation resulting from such reorganization,merger or consolidation were the Incumbent Directors at the time of theexecution of the initial agreement providing for such reorganization, merger orconsolidation; or

 

(d)                                 Approvalby the shareholders of the Company of (i) a complete liquidation ordissolution of the Company or (ii) the sale or other disposition of all orsubstantially all the assets of the Company, other than to a corporation withrespect to which immediately following such sale or other disposition, (A) morethan sixty percent (60%) of, respectively, the then outstanding shares ofcommon stock of such corporation and the combined voting power of the thenoutstanding voting securities of such corporation entitled to vote generally inthe election of directors is then beneficially owned, directly or indirectly,by all or substantially all the individuals and entities who were thebeneficial owners, respectively, of the Outstanding Company Common Stock andthe Outstanding Company Voting Securities immediately prior to such sale orother disposition in substantially the same proportion as their ownership,immediately prior to such sale or other disposition, of the Outstanding Company

 

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Common Stock and the Outstanding Company Voting Securities, as the casemay be, (B) no Person (excluding the Company, any employee benefit plan(or related trust) of the Company or such corporation and any Personbeneficially owning, immediately prior to such sale or other disposition, directlyor indirectly, thirty-three percent (33%) or more of the Outstanding CompanyCommon Stock or the Outstanding Company Voting Securities, as the case may be)beneficially owns, directly or indirectly, thirty-three percent (33%) ormore of, respectively, the then outstanding shares of common stock of suchcorporation and the combined voting power of the then outstanding votingsecurities of such corporation entitled to vote generally in the election ofdirectors, and (C) at least a majority of the members of the board ofdirectors of such corporation were approved by a majority of the IncumbentDirectors at the time of the execution of the initial agreement or action ofthe Board providing for such sale or other disposition of the Company’s assets.

 

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