Exhibit 10.17


 


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 RONALD A. MARTELL
(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.


 


8

















 


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:

  	
   

  	
  Ronald A. Martell

  
	
   

  	
   

  	
  3456 Baker Street

  
	
   

  	
   

  	
  San Francisco, CA 94123

  
	
   

  	
   

  	
   

  
	
  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/ Gerald McMahon

  
	
   

  	
   

  	
  Name: Gerald McMahon

  
	
   

  	
   

  	
  Its: Chairman &
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald A. Martell

  
	
   

  	
   

  	
  Name: Ronald A. Martell

  



 


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.


 


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