Exhibit 10.27


 


Level 2 – Amended & Restated


 


PONIARD PHARMACEUTICALS,
INC.

AMENDED AND RESTATED

CHANGE OF CONTROL AGREEMENT


 


This Amended and Restated Change of Control
Agreement (this “Agreement”), dated as of February 24,
2009, is entered into by and between PONIARD PHARMACEUTICALS, INC., a
Washington corporation (as supplemented by Section 13 hereof, the “Company”), and ANNA WIGHT (the “Executive”) to reflect amendments made in December,
2008.


 


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


 


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


 


1.                                      Definitions


 


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


 


1.2                                 “Change
of Control Date” shall mean the first date on which a Change of
Control occurs.


 


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


 


1.4                                 “Original
Agreement” shall mean the Change of Control Agreement, dated as
of March 3, 2008, between the parties.


 


1.5                                 “Severance
Agreement” shall mean the Amended and Restated Key Executive
Severance Agreement, dated as of the date hereof, between the parties, as it
may be amended from time to time, that provides for certain benefits related to
termination of the Executive’s employment that are unrelated to a Change of
Control.


 

















 


2.                                      Term


 


The initial
term of this Agreement (“Initial Term”)
shall be for a period of one (1) year from the date of this Agreement as first
appearing above; provided, however, that this Agreement shall automatically
renew for successive additional one (1) year periods (“Renewal
Terms”) unless notice of nonrenewal is given by either party to
the other at least ninety (90) days prior to the end of the Initial Term or any
Renewal Term; and provided, further, that if a Change of Control occurs during
the Term, the Term shall automatically extend for the duration of the
Employment Period. The “Term” of
this Agreement shall be the Initial Term plus all Renewal Terms and, if
applicable, the duration of the Employment Period. At the end of the Term, this
Agreement shall terminate without further action by either the Company or the
Executive.


 


3.                                      Employment


 


3.1                               Employment
Period


 


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


 


3.2                               Position
and Duties


 


During the
Employment Period, the Executive’s position, authority, duties and
responsibilities shall be at least commensurate in all material respects with
the most significant of those held, exercised and assigned at any time during
the ninety (90) day period immediately preceding the Change of Control Date.


 


3.3                               Location


 


During the
Employment Period, the Executive’s services shall be performed at the Company’s
offices on the Change of Control Date at which the Executive was employed or
any office that is subsequently designated by the Company and is less than
thirty (30) miles from such location.


 


3.4                               Employment
at Will


 


The Executive
and the Company acknowledge that, except as may otherwise be provided under any
other written agreement between the Executive and the Company, the employment
of the Executive by the Company or its affiliated companies is “at will” and
may be terminated by either the Executive or the Company or its affiliated
companies at any time with or without cause. Moreover, if prior to the Change
of Control Date, the Executive’s employment with the


 


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Company or its affiliated companies terminates for any reason, then the
Executive shall have no further rights under this Agreement; provided, however,
that the Company may not avoid liability for any termination payments that
would have been required during the Employment Period pursuant to Section 8
hereof by terminating the Executive prior to the Employment Period where such
termination is carried out in anticipation of a Change of Control and the
principal motivating purpose is to avoid liability for such termination
payments.


 


4.                                      Attention
and Effort


 


During the Employment Period, and excluding
any periods of vacation and sick leave to which the Executive is entitled, the
Executive will devote all of the Executive’s productive time, ability,
attention and effort to the business and affairs of the Company and the
discharge of the responsibilities assigned to the Executive hereunder, and will
use the Executive’s reasonable best efforts to perform faithfully and
efficiently such responsibilities. It shall not be a violation of this
Agreement for the Executive to (a) serve on corporate, civic or charitable
boards or committees, (b) deliver lectures, fulfill speaking engagements
or teach at educational institutions, (c) manage personal investments, or (d) engage
in activities permitted by the policies of the Company or as specifically
permitted by the Company, so long as such activities do not significantly
interfere with the performance of the Executive’s responsibilities in
accordance with this Agreement. It is expressly understood and agreed that to
the extent any such activities have been conducted by the Executive prior to
the Employment Period, the continued conduct of such activities (or the conduct
of activities similar in nature and scope thereto) during the Employment Period
shall not thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company.


 


5.                                      Compensation


 


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


 


5.1                               Salary


 


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


 


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5.2                               Bonus


 


In addition to the Annual Base Salary, the
Executive shall be awarded, for each fiscal year ending during the Employment
Period, an annual performance bonus (the “Annual Performance Bonus”)
in cash at least equal to the average annualized (for any fiscal year
consisting of less than twelve (12) full months) bonus paid or payable to the
Executive by the Company and its affiliated companies in respect of the
Executive’s performance during the three fiscal years (or such shorter period
of employment) immediately preceding the fiscal year in which the Change of
Control Date occurs. Each Annual Performance Bonus shall be paid in the fiscal
year following the fiscal year for which the Annual Performance Bonus is
awarded, but no later than the fifteenth day of the third month of such
subsequent fiscal year, unless the Executive shall elect to defer the receipt
of the Annual Performance Bonus in accordance with the terms of the Company’s
deferred compensation program.


 


6.                                      Benefits


 


6.1                               Incentive,
Retirement and Welfare Benefit Plans; Vacation


 


As long as the
Executive remains employed by the Company during the Employment Period, the
Executive shall be entitled to participate, subject to and in accordance with
applicable eligibility requirements, in such fringe benefit programs as shall
be generally made available to other executives of the Company and its
affiliated companies from time to time during the Employment Period by action
of the Board (or any person or committee appointed by the Board to determine
fringe benefit programs and other emoluments), including, without limitation,
paid vacations; any stock purchase, savings or retirement plan, practice,
policy or program; and all welfare benefit plans, practices, policies or
programs (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans or programs).


 


6.2                               Expenses


 


As long as the
Executive remains employed by the Company during the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
employment expenses incurred by the Executive in accordance with the policies,
practices and procedures of the Company and its affiliated companies in effect
for the executives of the Company and its affiliated companies during the
Employment Period. Without limitation on the foregoing, reimbursement shall be
made no later than the end of the fourth month of the year following the year
in which the expense was incurred.


 


7.                                      Termination


 


During the
Employment Period, employment of the Executive may be terminated as follows,
but, in any case, the nondisclosure provisions set forth in Section 10
hereof shall survive


 


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the termination of this Agreement and the termination of the Executive’s
employment with the Company:


 


7.1                               Termination
by the Company or the Executive


 


At any time during the Employment Period, the
Company may terminate the employment of the Executive with or without Cause (as
defined below), and the Executive may terminate the Executive’s employment for
Good Reason (as defined below) or for any reason, upon giving a Notice of
Termination (as defined below).


 


7.2                               Automatic
Termination


 


This Agreement and the Executive’s employment
during the Employment Period shall terminate automatically upon the death or
Total Disability of the Executive. The term “Total
Disability” as used herein shall mean the Executive’s inability
(with such accommodation as may be required by law and which places no undue
burden on the Company), as determined by a physician selected by the Company
and acceptable to the Executive, to perform the duties set 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 of physical or mental illness,
loss of legal capacity or any other cause beyond the Executive’s control,
unless the Executive is granted a leave of absence by the Board. The Executive
and the Company hereby acknowledge that the duties specified in Section 3.2
hereof are essential to the Executive’s position and that the Executive’s
ability to perform those duties is the essence of this Agreement.


 


7.3                               Notice
of Termination


 


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


 


7.4                               Date
of Termination


 


During the Employment Period, “Date of Termination” means (a) if the Executive’s
employment is terminated by reason of death, the last day of the calendar month
in which the Executive’s death occurs, (b) if the Executive’s employment
is terminated by reason of Total Disability, immediately upon a
determination by the Company of the Executive’s Total


 


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Disability, and (c) in all other cases, ten (10) days after
the date of personal delivery or mailing of the Notice of Termination. The
Executive’s employment and performance of services will continue during such
ten (10) day period; provided, however, that the Company may, upon notice
to the Executive and without reducing the Executive’s compensation during such
period, excuse the Executive from any or all of the Executive’s duties during
such period. Notwithstanding anything
contained in this Agreement to the contrary, the date on which a “separation
from service” (“Separation
from Service”) pursuant to Section 409A of the Internal
Revenue Code of 1986, as amended (“Code Section 409A”),
occurs shall be the “Date of Termination” or termination of employment for
purposes of determining the timing of payments under this Agreement to the
extent necessary to have such payments and benefits under this Agreement be
exempt from the requirements of Code Section 409A or comply with the
requirements of Code Section 409A.


 


8.                                      Termination
Payments


 


In the event of termination of the Executive’s
employment during the Employment Period, all compensation and benefits set
forth in this Agreement shall terminate except as specifically provided in this
Section 8.


 


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


 


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


 


(a)                                  receive payment of
the following accrued obligations (the “Accrued Obligations”):


 


(i)                                     the Annual Base Salary through the Date of
Termination to the extent not theretofore paid;


 


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


 


(iii)                               any compensation previously deferred by the Executive (together with
accrued interest or earnings thereon, if any); and


 


(iv)                              any accrued vacation pay that would be payable under the Company’s
standard policy, in each case to the extent not theretofore paid;


 


(b)                                 have the Company pay
for one (1) year after the Date of Termination or until the Executive
qualifies for comparable medical and dental insurance benefits from another
employer, whichever occurs first, the Executive’s premiums for health insurance
benefit


 


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continuation for the Executive and the Executive’s family members, if
applicable, that the Company provides to the Executive under the provisions of
the federal Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”), to the extent that the Company would have paid
such premiums had the Executive remained employed by the Company (such continued
payment is hereinafter referred to as “COBRA Continuation”);


 


(c)                                  an amount as
severance pay equal to one (1) times the Annual Performance Bonus payable
with respect to the fiscal year in which the Date of Termination occurs;


 


(d)                                 an amount as severance
pay equal to one (1) times the Annual Base Salary for the fiscal year in
which the Date of Termination occurs; and


 


(e)                                  immediate vesting of
all outstanding stock options previously granted to the Executive by the
Company.


 


8.2                               Termination
for Cause or Other Than for Good Reason


 


If during the Employment Period the Executive’s
employment shall be terminated by the Company for Cause or by the Executive for
other than Good Reason, this Agreement shall terminate without further
obligation on the part of the Company to the Executive, other than the Company’s
obligation to pay the Executive (a) the Annual Base Salary through the
Date of Termination, (b)  the amount of any compensation previously
deferred by the Executive in accordance with the terms of the Company’s
deferred compensation program, and (c) any accrued vacation pay that would
be payable under the Company’s standard policy, in each case to the extent
theretofore unpaid.


 


8.3                               Expiration
of Term


 


In the event the Executive’s employment is
not terminated prior to expiration of the Term, this Agreement shall terminate
without further obligation on the part of the Company to the Executive, other
than the Company’s obligation to pay the Executive the product of (a) the
Annual Performance Bonus 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 current fiscal year through the end of the Term and the denominator
of which is three hundred sixty-five (365). Such payment will be made in the
fiscal year following the fiscal year in which the Term expired no later than
the fifteenth day of the third month of such subsequent fiscal year.


 


8.4                               Termination
Because of Death or Total Disability


 


If during the Employment Period the Executive’s
employment is terminated by reason of the Executive’s death or Total
Disability, this Agreement shall terminate automatically without further
obligation on the part of the Company to the Executive or the Executive’s legal
representatives under this Agreement, other than the Company’s obligation to
pay the Executive the Accrued Obligations (which shall be paid to the Executive’s
estate or beneficiary, as applicable in the case of the Executive’s death) and
to provide COBRA Continuation.


 


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8.5                               Payment
Schedule


 


All payments of Accrued Obligations, or any
portion thereof payable pursuant to this Section 8, other than deferred
compensation pursuant to Section 8.1(a)(iii) hereof, shall be made to
the Executive within ten (10) working days of the Date of Termination.
Deferred compensation pursuant to Section 8.1(a)(iii) hereof shall be
payable pursuant to the terms of the deferred compensation program. Any
severance payments payable to the Executive pursuant to Sections 8.1(c) and
8.1(d) hereof shall be made to the Executive in a lump sum within
ten (10) working days of the Date of Termination. Notwithstanding the
preceding provisions of this Section 8,
if any payment or benefit pursuant to this Agreement constitutes a “deferral of
compensation” subject to Code Section 409A (after taking into account, to
the maximum extent possible, any applicable exemptions) (a “409A Payment”) treated as payable to
a Specified Employee (as defined in Section 21.1 hereof) upon Separation
from Service, the provisions of Section 21.1 hereof shall apply. Section 8.9
hereof must be satisfied to receive payments and benefits under this Agreement.


 


8.6                               Cause


 


For purposes of this Agreement, “Cause” means cause given by the Executive to the Company
and shall include, without limitation, the occurrence of one (1) or more
of the following events:


 


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


 


(b)                                 persistent failure to
carry out any lawful duties of the Executive described in Section 3.2
hereof or any directions of the Board or senior management reasonably consistent
with the duties herein set forth to be performed by the Executive; provided,
however, that the Executive has been given reasonable notice and opportunity to
correct any such failure;


 


(c)                                  violation by the
Executive of a state or federal criminal law involving the commission of a
crime against the Company or any other criminal act involving moral turpitude;


 


(d)                                 current abuse by the
Executive of alcohol or controlled substances; deception, fraud,
misrepresentation or dishonesty by the Executive; or any incident materially
compromising the Executive’s reputation or ability to represent the Company
with investors, customers or the public; or


 


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


 


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8.7                               Good
Reason


 


For purposes of this Agreement, “Good Reason” means:


 


(a)                                  the assignment to the
Executive of any duties materially inconsistent with the Executive’s position,
authority, duties or responsibilities as contemplated by Section 3.2
hereof or any other action by the Company that results in a material diminution
in such position, authority, duties or responsibilities, excluding for this
purpose an isolated and inadvertent action not taken in bad faith and that is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;


 


(b)                                 any failure by the
Company to comply with any of the provisions of Section 5 or Section 6
hereof, other than an isolated and inadvertent failure not taken in bad faith
and that is remedied by the Company promptly after receipt of notice thereof
given by the Executive;


 


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


 


(d)                                 any failure 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 the requirements of Section 13
hereof; or


 


(e)                                  any other material
violation of any provision of this Agreement by the Company;


 


provided, however, that the Executive has
notified the Company of such assignment, failure, situation or violation within
ninety (90) days of its occurrence and there has been compliance with the
notice and opportunity-to-cure requirements of Section 11 hereof.


 


8.8                               Excess
Parachute Limitation


 


If any portion of the payments or benefits
for the Executive under this Agreement, the Severance Agreement, or any other
agreement or benefit plan of the Company (including a stock option plan) would
be characterized as an “excess parachute payment” to the Executive under Section 280G
of the Internal Revenue Code of 1986, as amended (the “Code”),
the Executive shall be paid any excise tax that the Executive owes under Code Section 4999
as a result of such characterization, such excise tax to be paid to the
Executive at least ten (10) days prior to the date that the Executive is obligated
to make the excise tax payment. The determination of whether and to what extent
any payments or benefits would be “excess parachute payments” and the date by
which any excise tax shall be due shall be determined in writing by recognized
tax counsel selected by the Company and reasonably acceptable to the Executive.
Without limitation on the foregoing, the payments made pursuant to this Section 8.8
shall be made no later than the end of the year following the year in which the
Executive remits such excise tax to the Internal Revenue Service.


 


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8.9                               General
Release of Claims


 


As a condition to receiving the payments and
benefits under this Section 8 other than Accrued Obligations set forth in
Sections 8.1(a)(i) and 8.1(a)(iv) hereof, the Executive shall execute
(and not later revoke) a general release and waiver of all claims against the
Company, which release and waiver shall be in a form acceptable to the Company,
in its reasonable discretion, and delivered to the Company no later than the
seventh day of the third month of the fiscal year following the year in which
the Date of Termination occurs. To the extent any payment or benefit is a 409A
Payment, the provisions of Section 21.3 hereof shall apply.


 


9.                                      Representations,
Warranties and Other Conditions


 


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


 


9.1                               Health


 


The Executive is in good health and knows of
no physical or mental disability that, with any accommodation that may be
required by law and that places no undue burden on the Company, would prevent
the Executive from fulfilling the Executive’s obligations hereunder. The
Executive agrees, if the Company requests, to submit to reasonable periodic
medical examinations by a physician or physicians designated by, paid for and
arranged by the Company. The Executive agrees that each examination’s medical
report shall be provided to the Company.


 


9.2                               No
Violation of Other Agreements


 


The Executive represents that neither the
execution nor the performance of this Agreement by the Executive will violate
or conflict in any way with any other agreements or obligations by which the
Executive may be bound.


 


10.                               Nondisclosure;
Return of Materials


 


10.1                        Nondisclosure


 


Except as required by the Executive’s
employment with the Company, the Executive will not, at any time during the
term of employment by the Company, or at any time thereafter, directly,
indirectly or otherwise, use, communicate, disclose, disseminate, lecture upon
or publish articles relating to any confidential, proprietary or trade secret
information of the Company without the prior written consent of the Company.
The Executive understands that the Company will be relying on this Agreement in
continuing the Executive’s employment, paying the Executive’s compensation,
granting the Executive any promotions or raises, or entrusting the Executive
with any information that helps the Company compete with others.


 


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10.2                        Return of Materials


 


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


 


11.                               Notice
and Cure of Breach


 


Whenever a breach of this Agreement by either
party is relied upon as justification for any action taken by the other party
pursuant to 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 asserting the 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 breach before taking further action hereunder and shall give the party
purportedly in breach of this Agreement the opportunity to correct such breach
during the twenty (20) day period.


 


12.                               Form of
Notice


 


Every notice required by the terms of this
Agreement shall be given in writing by serving the same upon the party to whom
it was addressed personally or by registered or certified mail, return receipt
requested, at the address set forth below or at such other address as may
hereafter be designated by notice given in compliance with the terms hereof:


 


	
  If to the Executive:

  	
  Anna Wight

  
	
   

  	
  6524 44th Avenue NE

  
	
   

  	
  Seattle, WA 98115

  
	
   

  	
   

  
	
  If to the Company:

  	
  Poniard
  Pharmaceuticals, Inc.

  
	
   

  	
  300
  Elliott Avenue West, Suite 500

  
	
   

  	
  Seattle,
  Washington 98119

  
	
   

  	
  Attn:
  Chief Executive Officer

  
	
   

  	
   

  
	
  With a copy to:

  	
  Perkins
  Coie LLP

  
	
   

  	
  1201
  Third Avenue, Suite 4800

  
	
   

  	
  Seattle,
  Washington 98101-3099

  
	
   

  	
  Attn:
  James R. Lisbakken

  



 


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


 


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13.                               Assignment


 


This Agreement is personal to the Executive
and shall not 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 assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, “Company” shall mean Poniard Pharmaceuticals, Inc.
and any affiliated company or successor to its business and/or assets as
aforesaid that assumes and agrees to perform this Agreement by contract,
operation of law, or otherwise. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted assigns.


 


14.                               Waivers


 


No delay or failure by any party hereto in
exercising, protecting or enforcing any of its rights, titles, interests or
remedies hereunder, and no course of dealing or performance with respect
thereto, shall constitute a waiver thereof. The express waiver by a party
hereto of any right, title, interest or remedy in a particular instance or
circumstance shall not constitute a waiver thereof in any other instance or
circumstance. All rights and remedies shall be cumulative and not exclusive of
any other rights or remedies.


 


15.                               Amendments
in Writing


 


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


 


16.                               Applicable
Law


 


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


 


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17.                               Arbitration;
Attorneys’ Fees


 


Except in connection with enforcing
Section 10 hereof, 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 conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association
(the “AAA Rules”) then in effect,
conducted by one arbitrator either mutually agreed upon or selected in
accordance with the AAA Rules. The arbitration shall be conducted in King
County, Washington, under the jurisdiction of the Seattle office of the
American Arbitration Association. The arbitrator shall have authority only to
interpret and apply the provisions of this Agreement, and shall have no
authority to add to, subtract from or otherwise modify the terms of this
Agreement. Any demand for arbitration must be made within sixty (60) days of
the event(s) giving rise to the claim that this Agreement has been
breached. The arbitrator’s decision shall be final and binding, and each party
agrees to be bound by the arbitrator’s award, subject only to an appeal
therefrom in accordance with the laws of the State of Washington. Either party
may obtain judgment upon the arbitrator’s award in the Superior Court of King
County, Washington.


 


If it becomes necessary to pursue or defend
any legal proceeding, whether in arbitration or court, in order to resolve a
dispute arising under this Agreement, the prevailing party in any such
proceeding shall be entitled to recover its reasonable costs and attorneys’
fees. To the extent necessary to prevent the Executive from being subject to
any additional tax pursuant to Code Section 409A(a)(1)(B), any amounts
payable to the Executive pursuant to this paragraph shall be paid in no event
later than the year following the year during which such costs and fees were
incurred.


 


18.                               Severability


 


If any provision of this Agreement shall be
held invalid, illegal or unenforceable in any jurisdiction, for any reason,
including, without limitation, the duration of such provision, its geographical
scope or the extent of the activities prohibited or required by it, then, to
the full extent permitted by law, (a) all other provisions hereof shall
remain in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intent of the parties hereto as nearly as
may be possible, (b) such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of any other provision
hereof, and (c) any court or arbitrator having jurisdiction thereover
shall have the power to reform such provision to the extent necessary for such
provision to be enforceable under applicable law.


 


19.                               Entire
Agreement


 


This Agreement supersedes and replaces the
Original Agreement, and except as described in Section 23 hereof, this
Agreement constitutes the entire agreement between the Company and the
Executive with respect to the subject matter hereof, and all prior or
contemporaneous oral or written communications, understandings or agreements
between the Company and the Executive with respect to such subject matter are
hereby superseded and nullified in their entireties, except that the
Proprietary Information and Invention Agreement between the Company and the


 


13

















 


Executive shall continue in full force and effect to the extent not
superseded by Section 10 hereof.


 


20.                               Withholding


 


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


 


21.                               409A
Interpretation Provision


 


The parties intend that this Agreement and
the payments and benefits provided hereunder be exempt from the requirements of
Code Section 409A to the maximum extent possible, whether pursuant to the
short-term deferral exception described in Treasury Regulation
Section 1.409A-1(b)(4), the involuntary separation pay plan exception
described in Treasury Regulation Section 1.409A-1(b)(9)(iii), or otherwise.
To the extent Code Section 409A is applicable to this Agreement, the
parties intend that this Agreement comply with the deferral, payout and other
limitations and restrictions imposed under Code Section 409A. Notwithstanding
anything herein to the contrary, this Agreement is intended to be interpreted
and operated to the fullest extent possible so that the payments and benefits
under this Agreement either shall be exempt from the requirements of  Code Section 409A or shall comply with
the requirements of such provision; provided, however, that notwithstanding
anything to the contrary in this Agreement in no event shall the Company be
liable to the Executive for or
with respect to any taxes, penalties or interest that may be imposed upon the Executive pursuant to Code
Section 409A.


 


21.1                        Payments to Specified Employees


 


To the extent that any payment or benefit
pursuant to this Agreement constitutes a 409A Payment treated as payable upon
Separation from Service, then, if on the date of the Executive’s Separation from Service, the Executive is a Specified Employee, then to the extent required for
the Executive not to incur
additional taxes pursuant to Code Section 409A, no such 409A Payment shall
be made to the Executive earlier
than the earlier of (a) six (6) months after the Executive’s Separation from Service or
(b) the date of the Executive’s death. Should this Section 21 result
in the delay of benefits, any such benefit shall be made available to the Executive by the Company during such
delay period at the Executive’s
expense. Should this Section 21.1 result in a delay of payments or
benefits to the Executive, on
the first day any such payments or benefits may be made without incurring
additional tax pursuant to Code Section 409A (the “409A
Payment Date”), the Company shall make such payments and provide
such benefits as provided for in this Agreement, provided that any amounts that
would have been payable earlier but for the application of this
Section 21.1 as well as reimbursement of the amount the Executive paid for benefits pursuant
to the preceding sentence, shall be paid in a lump sum on the 409A Payment Date.
For purposes of this Section 21.1, the term “Specified
Employee” shall have the meaning set forth in Code
Section 409A, as determined in accordance with the methodology established
by the Company.


 


14

















 


21.2                        Reimbursements


 


For purposes of complying with Code
Section 409A and without extending the payment timing otherwise provided
in this Agreement, taxable reimbursements under this Agreement, subject to the
following sentence and to the extent required to comply with Code Section 409A,
will be made no later than the end of the calendar year following the calendar
year the expense was incurred. To the extent required to comply with Code
Section 409A, any taxable reimbursements and any in-kind benefit under
this Agreement will be subject to the following:  (a) payment of such reimbursements or
in-kind benefits during one calendar year will not affect the amount of such
reimbursements or in-kind benefits provided during any other calendar year
(other than for medical reimbursement arrangements as excepted under Treasury
Regulation Section 1.409A-3(i)(1)(iv)(B) solely because the
arrangement provides for a limit on the amount of expenses that may be
reimbursed under such arrangement over some or all of the period the
arrangement remains in effect); (b) such right to reimbursements or
in-kind benefits is not subject to liquidation or exchange for another form of
compensation to the Executive;
and (c) the right to reimbursements under this Agreement will be in effect
for the lesser of the time specified in this Agreement or ten (10) years
plus the lifetime of the Executive.
Any taxable reimbursements or in-kind benefits shall be treated as not subject
to Code Section 409A to the maximum extent provided by Treasury Regulation
Section 1.409A-1(b)(9)(v) or otherwise under Code Section 409A.


 


21.3                        Release


 


Subject to Section 21.1 hereof,
(a) to the extent that the Executive
is required to execute and deliver a release to receive a 409A Payment and
(b) this Agreement provides for such 409A Payment to be provided prior to
the 55th day following the Executive’s
Separation from Service, such 409A Payment will be provided upon the 55th day
following the Executive’s
Separation from Service, provided that the release in the form acceptable to
the Company, in its reasonable discretion, has been executed, delivered and
effective prior to such time. To the extent there is a delay in providing a
409A Payment because of the provisions of this Section 21.3, interest for
the delay and the opportunity for the Executive
to pay for benefits in the interim with subsequent reimbursement from the
Company shall be provided in a manner consistent with that set forth in
Section 21.1 hereof. If a release is required for a 409A Payment and such
release is not executed, delivered and effective by the 55th day following the Executive’s Separation from Service,
such 409A Payment shall not be provided to the Executive to the extent that providing such 409A Payment would
cause such 409A Payment to fail to comply with Code Section 409A.


 


21.4                        No Acceleration; Separate Payments


 


No 409A Payment payable under this Agreement
shall be subject to acceleration or to any change in the specified time or
method of payment, except as otherwise provided under this Agreement and
consistent with Code Section 409A. If under this Agreement, a 409A Payment
is to be paid in two or more installments, for purposes of Section 409A,
each installment shall be treated as a separate payment.


 


15

















 


22.                               Counterparts


 


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


 


23.                               Coordination
With Severance Agreement


 


The Severance Agreement that the parties
entered into provides for certain forms of severance and benefit payments in
the event of termination of the Executive’s employment. This Agreement is in
addition to the Severance Agreement and in no way supersedes or nullifies the
Severance Agreement. Nevertheless, it is possible that termination of
employment by the Company or by the Executive may fall within the scope of both
agreements. In such event, payments made to the Executive under
Section 8.1 hereof shall be coordinated with payments made to the
Executive under Section 5.1 of the Severance Agreement as follows:


 


(a)                                  Accrued Obligations
under this Agreement shall be paid first, in which case Accrued Obligations
need not be paid under the Severance Agreement;


 


(b)                                 COBRA Continuation
under this Agreement shall be provided first, in which case COBRA Continuation
need not be provided under the Severance Agreement;


 


(c)                                  the severance payment
required under Section 8.1(d) hereof shall be paid first in
connection with a Change of Control that constitutes a change in ownership or
effective control of the Company or in the ownership of a substantial portion
of the assets of the Company within the meaning of subsection
(a)(2)(A)(v) of Code Section 409A, in which case only that portion of
any severance payment required under Section 5.1(c) of the Severance
Agreement that is in excess of the severance payment required under
Section 8.1(d) hereof shall be paid in accordance with the provisions
of the Severance Agreement; and


 


(d)                                 the severance payment
required under Section 8.1(d) hereof (and paid pursuant to
Section 8.5 hereof) need not be paid to the extent a severance payment is
made under Section 5.1(c) of the Severance Agreement in connection
with a Change of Control that does not constitute a change in ownership or
effective control of the Company or in the ownership of a substantial portion
of the assets of the Company within the meaning of subsection
(a)(2)(A)(v) of Code Section 409A, i.e., the credit from
Section 5.1(c) of the Severance Agreement is applied to the amount
due under Section 8.1(d) hereof and therefore only that portion of
any severance payment required under Section 8.1(d) hereof that is in
excess of the total severance payment required under Section 5.1(c) of
the Severance Agreement shall be paid in accordance with the provisions of this
Agreement.


 


16

















 


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


 


 


	
   

  	
  PONIARD
  PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Janet R. Rea

  
	
   

  	
   

  	
  Name:

  	
  Janet
  R. Rea

  
	
   

  	
   

  	
  Its:

  	
  VP, Regulatory &
  Quality

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Anna Wight

  
	
   

  	
   

  	
  Name:

  	
   Anna Wight

  



 


17

















 


APPENDIX A


 


For purposes of this Agreement, a “Change of 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 the Board are
occupied by individuals who were neither (i) nominated by a majority of
the Incumbent Directors nor (ii) appointed by directors so nominated. An “Incumbent Director” is a member of the Board who has
been either (i) nominated by a majority of the directors of the Company
then in office or (ii) appointed by directors so nominated, but excluding,
for this purpose, any such individual whose initial assumption of office occurs
as a result of either an actual or threatened election contest (as such terms
are used in former Rule 14a-11 of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person (as hereinafter defined) other than the
Board; or


 


(b)                                 The acquisition by any
individual, entity or group (within the meaning of
Section 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 the Exchange Act) of (i) twenty percent
(20%) or more of either (A) the then outstanding shares of Common Stock of
the Company (the “Outstanding Company Common Stock”)
or (B) the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”), in the case of
either subclause (A) or (B) of this clause (i), which
acquisition is not approved in advance by a majority of the Incumbent
Directors, or (ii) thirty-three percent (33%) or more of either
(A) the Outstanding Company Common Stock or (B) the Outstanding
Company Voting Securities, in the case of either subclause (A) or
(B) of this clause (ii), which acquisition is approved in advance by a
majority of the Incumbent Directors; provided, however, that the following
acquisitions shall not constitute a Change of Control:  (x) any acquisition by the Company,
(y) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company, or (z) any acquisition by any corporation pursuant to a
reorganization, merger or consolidation, if, following such reorganization,
merger or consolidation, the conditions described in clauses (i),
(ii) and (iii) of subsection (c) of this Appendix A are satisfied;
or


 


(c)                                  Approval by the
shareholders of the Company of a reorganization, merger or consolidation, 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 corporation resulting from such
reorganization, merger or consolidation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock
and the Outstanding Company Voting Securities immediately prior to such reorganization,
merger or consolidation in substantially the same proportion as their ownership
immediately prior to such reorganization, merger or


 

















 


consolidation of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such reorganization, merger or
consolidation and any Person beneficially owning, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, thirty-three
percent (33%) or more of the Outstanding Company Common Stock or the
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, thirty-three percent (33%) or more of, respectively,
the then outstanding shares of common stock of the corporation resulting from
such reorganization, merger or consolidation or the combined voting power of
the then outstanding voting securities of such corporation entitled to vote
generally in the election of directors, and (iii) at least a majority of
the members of the board of directors of the corporation resulting from such
reorganization, merger or consolidation were the Incumbent Directors at the
time of the execution of the initial agreement providing for such
reorganization, merger or consolidation; or


 


(d)                                 Approval
by the shareholders of the Company of (i) a complete liquidation or
dissolution of the Company or (ii) the sale or other disposition of all or
substantially all the assets of the Company, other than to a corporation with
respect to which immediately following such sale or other disposition,
(A) more than sixty percent (60%) of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock
and the Outstanding Company Voting Securities immediately prior to such sale or
other disposition in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities, as the case may be,
(B) no Person (excluding the Company, any employee benefit plan (or
related trust) of the Company or such corporation and any Person beneficially
owning, immediately prior to such sale or other disposition, directly or
indirectly, thirty-three percent (33%) or more of the Outstanding Company
Common Stock or the Outstanding Company Voting Securities, as the case may be)
beneficially owns, directly or indirectly, thirty-three percent (33%) or more
of, respectively, the then outstanding shares of common stock of such
corporation or the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors, and (C) at least a majority of the members of the board of
directors of such corporation were approved by a majority of the Incumbent
Directors at the time of the execution of the initial agreement or action of
the Board providing for such sale or other disposition of the Company’s assets.


 


2