Exhibit 10.1


 


PONIARD PHARMACEUTICALS, INC.

AMENDED AND RESTATED 2004 INCENTIVE COMPENSATION PLAN


 


RESTRICTED STOCK UNIT AWARD NOTICE


 


Poniard Pharmaceuticals, Inc. (the “Company”) hereby grants to you (“Participant”) a Restricted Stock
Unit Award (the “Award”).  The Award is subject to all the terms and
conditions set forth in this Restricted Stock Unit Award Notice (the “Award Notice”) and the Restricted
Stock Unit Award Agreement (the “Award Agreement”)
and the Poniard Pharmaceuticals, Inc. Amended and Restated 2004 Incentive
Compensation Plan (the “Plan”),
which are incorporated into the Award Notice in their entirety.


 




	
  Participant:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Grant Date:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Number
  of Restricted Stock Units Subject to Award (the “Units”):

  
	
   

  
	
  Vesting Schedule:

  	
   

  	
   

  






 


Additional Terms/Acknowledgement:  You acknowledge receipt of, and understand
and agree to, the Award Notice, the Award Agreement and the Plan.  You further acknowledge that as of the Grant
Date, the Award Notice, the Award Agreement and the Plan set forth the entire
understanding between you and the Company regarding the Award and supersede all
prior oral and written agreements on the subject.


 


Withholding Taxes:  Please indicate below the method of tax
withholding desired for the Units.  This
selection is subject to the terms of the Award Agreement:


 


Withholding pursuant to Section 9.2
of the Award Agreement (sale of shares)


 


Withholding pursuant to Section 9.3 of the
Award Agreement (delivery of cash)


 


	
  PONIARD
  PHARMACEUTICALS, INC.  

  	
   

  	
  PARTICIPANT

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Name]

  
	
  Its:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  	
   

  



Attachments: 


1.
Restricted Stock Unit Award Agreement 


2.
Plan Summary for the Plan


 

















 


PONIARD PHARMACEUTICALS, INC.


AMENDED AND RESTATED 2004 INCENTIVE COMPENSATION PLAN


 


RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Pursuant to your Restricted Stock Unit Award
Notice (the “Award Notice”) and this
Restricted Stock Unit Award Agreement (this “Award
Agreement”), Poniard Pharmaceuticals, Inc.
(the “Company”) has granted to you
a Restricted Stock Unit Award (the “Award”)
under its Amended and Restated 2004 Incentive Compensation Plan (the “Plan”) for the number of Restricted
Stock Units indicated in your Award Notice. 
Capitalized terms not explicitly defined in this Award Agreement but
defined in the Plan have the same definitions as in the Plan.


 


The details of the Award are as follows:


 


1.             Vesting


 


Subject to the terms of
this Award Agreement, the Award will vest as set forth in the Award Notice (the
“Vesting Schedule”).  One share of the
Company’s Common Stock will be issuable for each Restricted Stock Unit that
vests.  Restricted Stock Units that have
vested and are no longer subject to forfeiture according to the Vesting
Schedule are referred to herein as “Vested Units.”  Restricted Stock Units that have not vested
and remain subject to forfeiture under the Vesting Schedule are referred to
herein as “Unvested Units.”  The Unvested Units will vest (and to the
extent so vested cease to be Unvested Units remaining subject to forfeiture) in
accordance with the Vesting Schedule (the Unvested and Vested Units are
collectively referred to herein as the “Units”).


 


Subject to Section 2.2
of this Award Agreement, as soon as practicable after Unvested Units become
Vested Units, but in no event later than 45 days after vesting, the Company will
settle the Vested Units by issuing to you one share of the Company’s Common
Stock for each Vested Unit.


 


2.             Automatic Forfeiture or Vesting of Units upon
Certain Events


 


[See Appendix A]


 


3.             Corporate Transaction


 


[See Appendix A]


 


4.             Securities Law Compliance


 


4.1          You represent and warrant that you (a) have
been furnished with a copy of the Plan and the plan summary for the Plan and
all information which you deem necessary to evaluate the merits and risks of
receipt of the Award, (b) have had the opportunity to ask questions and
receive answers concerning the information received about the Award and the
Company, and (c) have been given the opportunity to obtain any additional
information you


 

















 


deem necessary to verify
the accuracy of any information obtained concerning the Award and the Company.


 


4.2          You hereby
agree that you will in no event sell or distribute all or any part of the
Company’s Common Stock that you may receive pursuant to settlement of the Units
(the “Shares”) unless (a) there
is an effective registration statement under the Securities Act of 1933, as
amended (the “Securities Act”), and
applicable state securities laws covering any such transaction involving the
Shares or (b) the Company receives an opinion of your legal counsel (concurred
in by legal counsel for the Company) stating that such transaction is exempt
from registration or the Company otherwise satisfies itself that such
transaction is exempt from registration. 
You understand that the Company has no obligation to you to register the
Shares with the Securities and Exchange Commission and has not represented to
you that it will so register the Shares.


 


4.3          You confirm
that you have been advised, prior to your receipt of the Shares, that neither
the offering of the Shares nor any offering materials have been reviewed by any
administrator under the Securities Act or any other applicable securities act
(the “Acts”) and that the Shares
cannot be resold unless they are registered under the Acts or unless an
exemption from such registration is available.


 


4.4          You hereby
agree to indemnify the Company and hold it harmless from and against any loss,
claim or liability, including attorneys’ fees or legal expenses, incurred by
the Company as a result of any breach by you of, or any inaccuracy in, any
representation, warranty or statement made by you in this Award Agreement or
the breach by you of any terms or conditions of this Award Agreement.


 


5.             Transfer Restrictions


 


Units shall not be sold,
transferred, assigned, encumbered, pledged or otherwise disposed of, whether
voluntarily or by operation of law.


 


6.             No Rights as Shareholder


 


You shall not have voting
or other rights as a shareholder of the Company with respect to the Units.


 


7.             Independent Tax Advice


 


You acknowledge that determining the actual tax
consequences to you of receiving or disposing of the Units and the Shares may
be complicated.  These tax consequences
will depend, in part, on your specific situation and may also depend on the resolution
of currently uncertain tax law and other variables not within the control of
the Company.  You are aware that you
should consult a competent and independent tax advisor for a full understanding
of the specific tax consequences to you of receiving the Units and receiving or
disposing of the Shares.  Prior to
executing the Award Notice and Award Agreement, you either have consulted with
a competent tax advisor independent of the Company to obtain tax advice
concerning the receipt of the Units and the receipt or disposition of the
Shares in light of your specific situation or you have had the opportunity to
consult with such a tax advisor but chose not to do so.


 


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8.             Book
Entry Registration of Shares


 


The Company will issue the
Shares by registering the Shares in book entry form with the Company’s transfer
agent in your name and the applicable restrictions will be noted in the records
of the Company’s transfer agent and in the book entry system.


 


9.             Withholding


 


9.1          You are
ultimately responsible for all taxes owned in connection with this Award (e.g.,
at vesting and/or upon receipt of the Shares), including any domestic or
foreign tax withholding obligation required by law, whether national, federal,
state or local, including FICA or any other social tax obligation (the “Tax Withholding Obligation”),
regardless of any action the Company or any Related Corporation takes with
respect to any such Tax Withholding Obligation that arises in connection with
this Award.  The Company may refuse to issue
any Shares to you until you satisfy the Tax Withholding Obligation.


 


9.2          In connection
with your acceptance of the Award, you may elect no later than [two months  from
the Grant Date  of the Award]
to satisfy your Tax Withholding Obligation by irrevocably
appointing any brokerage firm acceptable to the Company for such purpose (the “Agent”) as your Agent, and
authorizing the Agent, to:


 


(a)           Sell on the open market at the then prevailing market price(s), on your
behalf, as soon as practicable on or after the settlement date for any Vested
Units, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the withholding taxes that you are
required to pay pursuant to Section 9.1 upon the settlement of Vested Units
and all applicable fees and commissions due to, or required to be collected by,
the Agent;


 


(b)           Remit directly to the Company the cash amount necessary to cover the
payment of all taxes required to be withheld with respect to the settlement of
Vested Units, as of such date;


 


(c)           Retain the amount required to cover all applicable fees and commissions
due to, or required to be collected by, the Agent, relating directly to the
sale of Shares referred to in clause (a) above; and


 


(d)           Remit any remaining funds to you.


 


In making this election, you represent and
warrant that you are not aware of any material, nonpublic information with
respect to the Company or any securities of the Company, are not subject to any
legal, regulatory or contractual restriction which would prevent the Agent from
conducting sales as provided herein, do not have, and will not attempt to
exercise authority, influence or control over any sales of Shares effected
pursuant to this Section 9.2, and are entering into this election in good
faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1
(regarding trading of the Company’s securities on the basis of material
nonpublic information) under the Exchange Act. 
It is the intent of the parties that this Award Agreement complies with
the requirements of Rule 10b5-1(c)(1)(i)(B) under the


 


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Exchange Act and this Award Agreement will be
interpreted to comply with the requirements of Rule 10b5-1(c) of the
Exchange Act.


 


You understand that the Agent may effect sales as
provided in clause (a) above jointly with sales for other employees of the
Company and that the average price for executions resulting from bunched orders
will be assigned to your account.  In
addition, you acknowledge that it may not be possible to sell Shares as
provided by this Section 9.2 due to (i) a legal or contractual
restriction applicable to you or the Agent, (ii) a market disruption, or (iii) rules governing
order execution priority on the exchange where the Shares may be traded.  In the event of the Agent’s inability to sell
Shares, you will continue to be responsible for payment to the Company of all
federal, state, local and foreign taxes that are required by applicable laws
and regulations to be withheld.


 


You acknowledge that regardless of any other term
or condition of this Award Agreement, the Agent will not be liable to you for (a) special,
indirect, punitive, exemplary, or consequential damages, or incidental losses
or damages of any kind, or (b) any failure to perform or for any delay in
performance that results from a cause or circumstance that is beyond its
reasonable control.


 


You hereby agree to execute and deliver to the Agent any other agreements
or documents as the Agent reasonably deems necessary or appropriate to carry
out the purposes and intent of this Section 9.2.  The Agent is a third party beneficiary of
this Section 9.2.


 


9.3          If you do not
elect to pay the Tax Withholding Obligation by the method set forth in Section 9.2,
you will required to pay such Tax Withholding Obligation by delivery of cash or
check payable to the Company in an amount that the Company determines is
sufficient to satisfy the Tax Withholding Obligation.  This Tax Withholding Obligation generally
will be due each time a portion of the Award vests.  If you elect to pay the Tax Withholding
Obligation by cash or check, Section 9.2 will not apply to your
Award.


 


9.4          Notwithstanding the
foregoing, to the maximum extent permitted by law, the Company has the right to
retain without notice from Shares issuable under the Award or from salary or
other amounts payable to you, Shares or cash having a value sufficient to
satisfy the Tax Withholding Obligation.


 


10.          General Provisions


 


10.1        Notices.  Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail.  Any notice required or permitted to be
delivered hereunder will be deemed to be delivered on the date on which it is
personally delivered, or, whether actually received or not, on the third
business day after it is deposited in the United States mail, certified or
registered, postage prepaid, addressed to the person who is to receive it at
the address that such person has theretofore specified by written notice
delivered in accordance herewith.  You or
the Company may change, by written notice to the other, the address previously
specified for receiving notices.  Notices
delivered to the Company should be addressed as follows:


 


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 [Poniard Pharmaceuticals, Inc.


 Attn:  Chief Financial Officer


 7000
Shoreline Court, Suite 270


 South San
Francisco, California 94080]


 


10.2        Assignment.  The Company may assign its rights under this
Award Agreement at any time, whether or not such rights are then exercisable,
to any person or entity selected by the Company’s Board of Directors.


 


10.3        No
Waiver.  No waiver of any provision of
this Award Agreement will be valid unless in writing and signed by the person
against whom such waiver is sought to be enforced, nor will failure to enforce
any right hereunder constitute a continuing waiver of the same or a waiver of
any other right hereunder.


 


10.4        Undertaking.  You hereby agree to take whatever additional
action and execute whatever additional documents the Company may deem necessary
or advisable in order to carry out or effect one or more of the obligations or
restrictions imposed on either you or the Units pursuant to the express
provisions of this Award Agreement.


 


10.5        Agreement
Is Entire Contract.  This Award
Agreement, the Award Notice and the Plan constitute the entire contract between
the parties hereto with regard to the subject matter hereof and supersede all
prior oral or written agreements on the subject.  This Award Agreement is made pursuant to the
provisions of the Plan will in all respects be construed in conformity with the
express terms and provisions of the Plan.


 


10.6        Successors
and Assigns.  The
provisions of this Award Agreement and the Award Notice will inure to the
benefit of, and be binding on, the Company and its successors and assigns and
you and your legal representatives, heirs, legatees, distributees, assigns and
transferees by operation of law, whether or not any such person will have
become a party to this Award Agreement and agreed in writing to join herein and
be bound by the terms and conditions hereof.


 


10.7        No
Employment Contract.  Nothing in
this Award Agreement will affect in any manner whatsoever the right or power of
the Company, or any Related Corporation, to terminate your employment on behalf
of the Company or any Related Corporation, for any reason, with or without
Cause.


 


10.8        Section 409A Compliance.  Payments
made pursuant to this Award Agreement and the Plan are intended to qualify for
an exemption from or comply with Section 409A
of the Code.  Notwithstanding any other
provision in this Award Agreement, the Award Notice and the Plan to the
contrary, the Company, to the extent it deems necessary or advisable in its
sole discretion, reserves the right, but shall not be required, to unilaterally
amend or modify this Award Agreement or the Award Notice so that the Award
qualifies for exemption from or complies with Section 409A of the Code;
provided, however, that the Company makes no representations that the Award
shall be exempt from or comply with Section 409A of the Code and makes no
undertaking to preclude Section 409A of the Code from applying to the
Award.  No provision of this Award
Agreement or the Award Notice shall be interpreted or construed to transfer any
liability for failure to comply with Section 409A of the Code from you or
any other


 


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individual to the Company.  By executing the Award Notice, you agree that
you shall be deemed to have waived any claim against the Company with respect
to any such tax consequences.


 


10.9        Counterparts.  The Award Notice may be executed in two or
more counterparts, each of which will be deemed an original, but which, upon
execution, will constitute one and the same instrument.


 


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APPENDIX A


 


RESTRICTED STOCK UNIT
AWARD AGREEMENT TERMS FOR PREVIOUSLY GRANTED RESTRICTED STOCK UNITS


 


FEBRUARY 4, 2010 RSUs


 


2.1          Involuntary
Termination of Employment by the Company without Cause


 


If the Company terminates
your employment for other than Cause prior to December 31, 2010, any
Unvested Units will immediately vest and become Vested Units, and you will be
entitled to receive one share of the Company’s Common Stock for each then
outstanding Unit.  Notwithstanding the
foregoing, the Company’s obligation to deliver to you shares of Common Stock
under this Section 2.1 is expressly conditioned upon (a) your timely
execution and delivery to the Company of a general release and waiver of claims
against the Company, which release and waiver shall be in a form acceptable to
the Company, in its reasonable discretion, and (b) the expiration of any
statutory period for revocation by you of such release and waiver.  Execution and delivery of a general release
and waiver is “timely” as used above if it occurs no later than at the
conclusion of any time period that the release and waiver provides for your
review and consideration of such document. 
If the release and waiver does not provide a specified review and
consideration period, then execution and delivery is “timely” if it occurs no
later than fourteen (14) calendar days following the date of termination of
employment; provided that, in any event, the release and waiver must be
executed and delivered to the Company and any shares you are eligible to
receive must be issued to you by no later than March 15 of the year
following termination of employment.


 


2.2          Voluntary
Termination of Employment or Termination for Cause


 


If you terminate employment
at the Company for any reason, including a voluntary termination by you or
termination by reason of your death, disability or retirement, or if the
Company terminates your employment for Cause, any Unvested Units will automatically
be forfeited to the Company upon such termination of employment without payment
of any consideration to you.  You will
have no further rights, and the Company will have no further obligations to
you, with respect to such Unvested Units.


 


3.             [intentionally blank]


 


APRIL 9, 2010 RSUs


 


2.1          Voluntary
Termination of Employment or Termination for Cause


 


If you terminate employment at the Company for any
reason, including a voluntary termination by you or termination by reason of
your death, disability or retirement, or if the Company terminates your
employment for Cause, any Unvested Units will automatically be forfeited to the
Company upon such termination of employment without payment of any
consideration to you.  You will have no
further rights, and the Company will have no further obligations to you, with
respect to such Unvested Units.


 


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2.2          Termination
of Employment by the Company Without Cause


 


If the Company terminates
your employment other than for Cause, Unvested Units will become Vested Units
to the extent of the number of Unvested Units that would have been vested had
vesting been calculated on a monthly basis, based on the number of full months
of employment with the Company from the Grant Date to the effective date of
termination.


 


Example:  If termination of employment other than for
Cause occurs on October 15, 2010, you would be entitled to accelerated
vesting as to 25% of the Units based on the six months that elapsed between April 9,
2010 and October 9, 2010.  If
termination without Cause occurs on October 15, 2011, 75% of the Units
would be vested (50% vested based on continued employment and accelerated
vesting of 25% based on the six months that elapsed between April 9, 2011
and October 9, 2011).  Any remaining
Unvested Units will automatically be forfeited to the Company.


 


Notwithstanding the
foregoing, the Company’s obligation to deliver to you shares of Common Stock
under this Section 2.2 is expressly conditioned upon (a) your timely
execution and delivery to the Company of a general release and waiver of claims
against the Company, which release and waiver shall be in a form acceptable to
the Company, in its reasonable discretion, and (b) the expiration of any
statutory period for revocation by you of such release and waiver.  Execution and delivery of a general release
and waiver is “timely” as used above if it occurs no later than at the
conclusion of any time period that the release and waiver provides for your
review and consideration of such document. 
If the release and waiver does not provide a specified review and
consideration period, then execution and delivery is “timely” if it occurs no
later than fourteen (14) calendar days following the effective date of
termination of employment.


 


3.             Corporate Transaction


 


In the event of a Corporate
Transaction, any Unvested Units shall accelerate in vesting and shall become
Vested Units immediately prior to such Corporate Transaction.  For purposes of this Award
Agreement, “Corporate Transaction” has the meaning set forth in the Plan,
except that it does not include a merger of the Company in
which the holders of Common Stock immediately prior to the merger have the same
proportionate ownership of common stock in the surviving corporation immediately
after the merger, a mere reincorporation of the Company or the creation of a
holding company.


 


APRIL 20, 2010 RSU GRANT TO
DR. MICHAEL S. PERRY


 


2.             Automatic Forfeiture upon Certain Events


 


2.1          Performance
Goal Not Satisfied


 


If the Performance Goal is not timely satisfied in
accordance with the Vesting Schedule, the number of Units subject to such
Performance Goal will automatically be forfeited to the Company without payment
of any consideration to you.  You will
have no further rights, and the Company will have no further obligations to
you, with respect to those Units.


 


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2.2          Termination
of Employment or Service


 


If your employment or
service relationship with the Company or a Related Corporation terminates for
any reason, including a voluntary termination by you or termination by reason
of your death, disability or retirement, or if the Company terminates your
employment or service relationship for any reason, any Unvested Units will
automatically be forfeited to the Company upon such termination of employment
or service without payment of any consideration to you.  You will have no further rights, and the
Company will have no further obligations to you, with respect to such Unvested
Units.


 


3.             Corporate Transaction


 


In the event of a Corporate Transaction, any
Unvested Units shall accelerate in vesting and shall become Vested Units
immediately prior to such Corporate Transaction.  For purposes of this Award Agreement, “Corporate
Transaction” has the meaning set forth in the Plan, except that it does not
include a merger of the Company in which the holders of Common Stock
immediately prior to the merger have the same proportionate ownership of common
stock in the surviving corporation immediately after the merger, a mere
reincorporation of the Company or the creation of a holding company.


 


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