2.                                         CHARACTERIZATION OF TERMINATION

 

Karlin and Poniard agree that for all future purposes they will characterize his termination of employment as involuntary for reasons other than misconduct or cause.

 

3.                                         SEPARATION BENEFITS

 

(a)           Following Karlin’s termination of employment, and in accordance with California law, Poniard will pay Karlin for his employment through the Termination Date (i) his current salary and (ii) an amount in respect of accrued but unused vacation leave of Eighty-Nine 55/100 (89.55) hours in the amount of Twelve Thousand Seven Hundred Seventy-Three 20/100 Dollars ($12,773.20), which constitute “Accrued Obligations” under Section 5.1(a) of the Severance Agreement (as defined in Section 7 hereof).  In addition, Poniard will pay Karlin the following amounts as severance:  (A) the amount due under Section 5.1(c) the Severance Agreement (which is an aggregate of Two Hundred Twenty-Two Thousand Five Hundred Dollars ($222,500.00)), which shall be paid through the remainder of 2008 as provided in Section 5.5 of the Severance Agreement and any remaining unpaid amount as of December 31, 2008 shall be paid in a lump sum at the end of the first pay period of Poniard in January, 2009, and (B) Seventy-Four Thousand One Hundred Seventy-One Dollars ($74,171.00), which represents the full amount of a bonus that he could have been eligible to receive for 2008 and which shall be paid at the end of the first pay period of Poniard in January, 2009.  Such severance amounts shall be subject to applicable tax withholding and to setoff against any amounts owed by Karlin to Poniard as of the payment date.

 

(b)           Poniard will pay Karlin for health insurance benefits in accordance with and subject to the terms of Section 5.1(b) of the Severance Agreement.

 

4.                                         CONSULTING AGREEMENT

 

(a)           Karlin will provide Poniard with consulting services for a period of six (6) months from the Termination Date in accordance with the terms set forth in Exhibit A attached hereto, which the parties are executing simultaneously with the execution of this Agreement and which shall be effective upon the Effective Date as defined in Section 11 of this Agreement (the “Consulting Agreement”).  At Poniard’s election given in writing prior to expiration, the term of the Consulting Agreement may have be extended for an additional six (6) months.  KARLIN CONFIRMS THAT HE HAS READ, FULLY UNDERSTANDS AND AGREES TO BE BOUND BY THE TERMS OF EXHIBIT A.

 

(b)           Poniard may terminate the Consulting Agreement early upon fifteen (15) days written notice to Karlin in the event that Karlin breaches any provision of this Agreement or the Consulting Agreement and such breach is not cured during such fifteen (15) day period.  Such termination shall be deemed termination for “cause” under the Poniard Pharmaceuticals, Inc. Amended and Restated 2004 Incentive Compensation Plan (the “Plan”).

 

(c)           Karlin and Poniard understand and hereby acknowledge that nothing in this

 

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Agreement shall be construed to create any relationship other than that of an independent contractor relationship.  Karlin is not an agent, employee, officer or trustee of Poniard, and is not entitled to the benefits provided by Poniard to its agents, employees, officers or trustees, except as may be expressly provided herein.  Karlin does not have any authority to, and will not, create or assume any obligation, express or implied, on behalf of Poniard.  Karlin understands that he is solely responsible for all taxes, withholdings, and any other statutory or contractual obligations of any sort.  Karlin agrees to indemnify and hold Poniard harmless from any and all claims, damages, liabilities, attorneys’ fees and expenses on account of a claimed failure by Karlin to satisfy any such obligations.  Poniard may, during the term of this Agreement, engage other independent contractors to perform consultant services.  Poniard will retain no control over the methods by which Karlin performs his services.

 

5.                                         STOCK OPTIONS

 

(a)           Karlin was granted stock options under the Plan by Poniard as set forth in Exhibit B attached hereto (the “Options”).  Karlin shall not be eligible for the grant of any other stock options from Poniard.  The Options shall continue to vest in accordance with their original terms and the terms of the Plan during the term of the Consulting Agreement, including accelerated vesting under certain conditions set forth in Section 10.2 of the Plan and without adjustment to the vesting schedule permitted by the last sentence of Section 6.2 of the Plan for a reduction in hours of service.  Those Options that have “cliff vesting” shall be accelerated in vesting by the same percentage that “cliff vesting” options held by executive officers of Poniard are accelerated in vesting for the achievement of 2008 corporate goals (accelerated vesting cannot exceed more twenty-five percent (25%) of the total amount of the “cliff vesting” option).  The Options will also accelerate in vesting in the event that a “Change of Control Date” (as defined in the Control Agreement, as defined below) occurs during the term of the Consulting Agreement.

 

(b)           It is recognized that Karlin’s “Termination of Service” under the Plan will occur when Karlin’s obligation to provide consulting services under the Consulting Agreement terminates.  Upon Karlin’s Termination of Service for reasons other than Cause, Retirement, Total Disability or death and notwithstanding Section 6.5(b)(i) of the Plan, the Options may be exercised until the earliest of: (i) thirty (30) days after Poniard receives approval from the FDA of its NDA for Picoplatin; (ii) twenty-four (24) months after Karlin’s Termination of Service; and (iii) the Option Expiration Date (as defined in the Plan) for the Options.

 

(c)           Except as provided herein, Karlin will be able to exercise the Options to the extent such Options are vested and exercisable in accordance with their original terms and the Plan.  By changing the nature of Karlin’s relationship with Poniard from an employment relationship to a consulting relationship, Karlin acknowledges, understands and agrees that all incentive stock options granted to him will become non-qualified stock options, effective three (3) months after the Termination Date.  Karlin agrees to pay all applicable withholding tax obligations at the time of exercise of the Options.  Except as provided herein, the original terms of the Options shall remain in force.

 

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6.                                         VALID CONSIDERATION

 

Karlin and Poniard agree that the additional benefits provided by Poniard to Karlin described in Sections 3(a)(B), 4 and 5 is not required by Poniard policies or procedures or by any contractual obligation of Poniard, and is offered by Poniard solely as consideration for this Agreement.

 

7.                                         REAFFIRMATION OR TERMINATION OF OBLIGATIONS

 

Karlin acknowledges his obligations under the NeoRx Corporation Invention and Proprietary Information Agreement, in the form attached as Exhibit C (“Invention Agreement”), that applies to the entire period of Karlin’s employment with Poniard and that survives the execution of this Agreement.  (Poniard was formerly known as NeoRx Corporation.)  The parties expressly acknowledge and reaffirm their respective obligations under the Nondisclosure and Return of Materials terms contained in Section 7.1 and Section 7.2 of the Amended and Restated Key Executive Severance Agreement, dated March 3, 2008, between Poniard and Karlin, a copy of which is attached as Exhibit D (“Severance Agreement”).  Except for Section 7.1 and Section 7.2 that survive, the Severance Agreement shall terminate as of the Termination Date.  The Amended and Restated Change of Control Agreement (VP), dated as of March 3, 2008, between Poniard and Karlin, a copy of which is attached as Exhibit E (“Control Agreement”), shall terminate as of the Termination Date.

 

8.                                         CONFIDENTIALITY OF SEPARATION AGREEMENT

 

Karlin agrees that, except as otherwise provided by law, he will keep the terms of this Agreement completely confidential, and that he will not disclose any information concerning this Agreement or its terms to anyone other than his immediate family, legal counsel, and/or financial advisors, who will be informed of and bound by this confidentiality clause, provided that Karlin may advise prospective employers of the continuing non-disclosure and consulting obligations owed by Karlin to Poniard.

 

9.                                         GENERAL RELEASE OF CLAIMS

 

Karlin expressly waives any claims against Poniard and releases Poniard (including its officers, directors, stockholders, managers, employees, agents and representatives) from any claims that he may have in any way connected with his employment with Poniard and the termination thereof.  It is understood that this release includes, but is not limited to, any claims for wages, bonuses, employment benefits, or damages of any kind whatsoever, arising out of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any theory of wrongful discharge, any legal restriction on Poniard’s right to terminate employment, or any federal, state or other governmental statute or ordinance, including, without limitation, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the Federal Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Washington Law Against Discrimination, the California Fair Employment and Housing Act, the Federal Fair Labor Standards Act and the California Labor Code (to the degree such

 

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release is allowed by law), or any other legal limitation on the employment relationship.

 

It is the intention of Karlin and Poniard that this Agreement is a General Release which shall be effective as a bar to each and every claim, demand, or cause of action it releases.  Karlin recognizes that he may have some claim, demand, or cause of action against Poniard of which Karlin is totally unaware and unsuspecting, which Karlin is giving up by execution of the General Release.  It is the intention of Karlin in executing this Agreement that it will deprive Karlin of each such claim, demand or cause of action and prevent Karlin from asserting it against Poniard. In furtherance of this intention, Karlin expressly waives any rights or benefits conferred by the provisions of section 1542 of the Civil Code of the State of California, which provides as follows:

 

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

 

Karlin represents that he has not filed any complaints, charges or lawsuits against Poniard with any governmental agency or any court, and agrees that he will not initiate, assist or encourage any such actions.

 

This waiver and release shall not waive or release claims where the events in dispute first arise after execution of this Agreement, nor shall it preclude Karlin from filing a lawsuit for the exclusive purpose of enforcing his rights under this Agreement.

 

10.                                  MUTUAL NONDISPARAGEMENT

 

Karlin and Poniard agree to mutually refrain from disparaging the other.

 

11.                                  REVIEW AND REVOCATION PERIOD; EFFECTIVE DATE

 

Poniard has advised Karlin that he has up to twenty-one (21) days to review this Agreement and consult legal counsel if he so chooses.  Karlin may revoke this Agreement if he so chooses by providing notice of his decision to revoke the Agreement to Poniard within seven (7) days following the date he signs this Agreement.  This Agreement shall become effective and enforceable upon expiration of this seven (7)-day revocation period (the “Effective Date”).

 

12.                                  SEVERABILITY

 

The provisions of this Agreement are severable, and if any part of it is found to be unlawful or unenforceable, the other provisions of this Agreement shall remain fully valid and enforceable to the maximum extent consistent with applicable law.

 

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13.                                  KNOWING AND VOLUNTARY AGREEMENT

 

Karlin represents and agrees that he has read this Agreement, understands its terms and the fact that it releases any claim he might have against Poniard and its officers, directors, stockholders, managers, employees, agents and representatives, understands that he has the right to consult counsel of choice and has either done so or knowingly waived the right to do so, and enters into this Agreement without duress or coercion from any source.

 

14.                                  ASSIGNMENT

 

This Agreement is personal to Karlin and shall not be assignable by Karlin; however, in the event of Karlin’s death, this Agreement shall inure to the benefit of Karlin’s estate as allowed by law.

 

Poniard 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 Poniard to assume expressly and agree to perform this Agreement in the same manner and to the same extent that Poniard would be required to perform it if no such succession had taken place.  As used in this Agreement, Poniard 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.

 

15.                                  ARBITRATION

 

Any controversies or claims, except as set out below, arising out of or relating to this Agreement shall be fully and finally settled by arbitration in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association then in effect (the “AAA Rules”), conducted by one arbitrator mutually agreed upon by Poniard and Karlin or chosen in accordance with the AAA Rules.  The parties shall have the rights provided under the AAA Rules, except that the parties shall have such rights to discovery as would be permitted by the California Code of Civil Procedure, the arbitrator shall render a written opinion, which shall be subject to review by the Superior Court of the State of California, the arbitrator may award any relief that would be available in the California Superior Court, and Employer will pay the arbitrator’s fees and any other costs of arbitration that would not be borne by Employee if Employee were a litigant in the California Superior Court.  The prevailing party shall be entitled to costs, expenses, and reasonable attorneys’ fees (subject to the foregoing limitation on responsibility for payment of the arbitrator’s fees and costs of arbitration), and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the above procedure, the parties may also seek equitable relief in an appropriate court for violation of the terms of the Invention Agreement, the Nondisclosure and Return of Materials sections of the Severance Agreement, which are reaffirmed herein in Section 7 and the provisions of Exhibit A.

 

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16.                                  ENTIRE AGREEMENT

 

This Agreement, together with the Invention Agreement and Consulting Agreement, sets forth the entire understanding between Karlin and Poniard and supersedes any prior agreements or understandings, express or implied, pertaining to the terms of Karlin’s employment with Poniard and the termination of the employment relationship, including, except as expressly reaffirmed herein, the Severance Agreement and the Control Agreement.  Karlin acknowledges that in executing this Agreement, he does not rely upon any representation or statement by any representative of Poniard concerning the subject matter of this Agreement, except as expressly set forth in the text of this Agreement.

 

17.                                  GOVERNING LAW; JURISDICTION AND VENUE

 

This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law provisions.  In the event of any court proceedings, the parties irrevocably consent and submit to the jurisdiction of the federal and state courts of and located in San Mateo County, California, with regard to any claims arising under or in connection with this Agreement.

 

18.           WITHHOLDING

 

Poniard may deduct and withhold from the payments to be made to Karlin hereunder any amounts required to be deducted and withheld by Poniard under the provisions of any statute, law, regulation or ordinance now or hereafter enacted.

 

19.           CODE SECTION 409A

 

Poniard makes no representations or warranties to Karlin with respect to any tax, economic or legal consequences of this Agreement or any payments or other benefits provided hereunder, including without limitation under Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations and guidance thereunder (“Code Section 409A”), and no provision of this Agreement shall be interpreted or construed to transfer any liability for failure to comply with Code Section 409A from Karlin or any other individual to Poniard or any of its affiliates.  Karlin, by executing this Agreement, shall be deemed to have waived any claim against Poniard and its affiliates with respect to any such tax, economic or legal consequences.  However, the parties intend that this Agreement and the payments and other 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) or otherwise.  For purposes of Code Section 409A, each payment provided for under Section 3 hereof shall be treated as a separate payment.  To the extent Code Section 409A is applicable to this Agreement (and such payments and benefits), the parties intend that this Agreement (and such payments and benefits) comply with the deferral, payout and other limitations and restrictions imposed under Code Section 409A.  Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall be interpreted, operated and administered in a manner consistent with such intentions.  Without limiting the generality of the foregoing, and

 

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notwithstanding any other provision of this Agreement to the contrary, with respect to any payments and benefits under this Agreement to which Code Section 409A applies, all references in this Agreement to the termination of Karlin’s employment are intended to mean Karlin’s “separation from service,” within the meaning of Code Section 409A(a)(2)(A)(i).  In addition, if Karlin is a “specified employee,” within the meaning of Code Section 409A(a)(2)(B)(i), then to the extent necessary to avoid subjecting Karlin to the imposition of any additional tax under Code Section 409A, amounts that would otherwise be payable under this Agreement during the six-month period immediately following Karlin’s “separation from service,” within the meaning of Code Section 409A(a)(2)(A)(i), shall not be paid to Karlin during such period, but shall instead be accumulated and paid to Karlin (or, in the event of Karlin’s death, Karlin’s estate) in a lump sum on the first business day following the earlier of (a) the date that is six months after Karlin’s separation from service or (b) Karlin’s death.

 

20.                                  COUNTERPARTS

 

This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one agreement.

 

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated below.

 

 

Poniard Pharmaceuticals, Inc.
/s/ Gerald McMahon			/s/ David A. Karlin
Gerald McMahon			David A. Karlin
Title: Chairman and Chief Executive
Officer			Dated:	November 21, 2008
Dated:	November 21, 2008

 

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EXHIBIT A

 

CONSULTING AGREEMENT

 

THIS CONSULTING AGREEMENT is made between Poniard Pharmaceuticals, Inc. (hereinafter referred to as “Poniard”), with an address at 300 Elliott Avenue West, Suite 500, Seattle, Washington 98119, and David A. Karlin (hereinafter referred to as “Consultant”), with an address at 100 Yerba Santa Ave., Los Altos, California 94022.

 

THE PARTIES AGREE AS FOLLOWS :

 

1.                              Effective Date .  This Agreement shall be effective November 28, 2008, the “Effective Date” of the Separation/Consulting Agreement and General Release between Poniard and Consultant dated November 21, 2008 by Consultant (the “Separation Agreement”).

 

2.                              Term .  The term of this Agreement shall be from November 21, 2008, (the “Termination Date” set forth in the Separation Agreement) through May 21, 2009 (six (6) months after the “Termination Date”).  At Poniard’s election given in writing prior to expiration, the term of this Agreement may have be extended for an additional six (6) months.  Consultant may terminate this Agreement upon fifteen (15) days prior written notice to Poniard, and Poniard may terminate this Agreement upon fifteen (15) days prior written notice to Consultant in the event Consultant breaches any provision of the Separation Agreement or this Agreement and such breach is not cured during such fifteen (15) days.

 

3.                              General Purpose .  The general purpose of this Agreement is to engage Consultant to provide consulting services with respect to the clinical, pre-clinical and regulatory activities of Poniard.  Such services shall be performed in conformance with professional standards for performing services of a similar kind.  Consultant agrees to make himself available to Poniard for consulting services up to a maximum of twenty-two (22) hours per month in the performance of this Agreement.  Such services may be provided to Poniard by telephone or at meetings convened at a mutually agreeable time and place, or may be provided to others at Poniard’s request.  During the term of this Agreement, Poniard shall have no obligation to provide Consultant with office space, secretarial or other support, all of which will be provided by Consultant at his own expense.

 

4.                              Compensation .  During the term of this Agreement, Poniard shall pay Consultant the sum of Four Hundred Fifty Dollars ($450.00) per hour once monthly upon receipt of an Invoice for the services directed to the attention of Accounts Payable at Poniard.  The Invoice shall provide the date and a brief description of the services rendered per day, and Poniard shall provide payment for approved services within thirty days of receipt of such Invoice.  In addition, Poniard shall reimburse Consultant for actual and necessary out-of-pocket expenses incurred, where such expenses are necessary and related to services rendered under this Agreement; such expenses should be billed in the same Invoice submitted for services.  Consultant’s fees are, however, subject to a maximum of Ten Thousand Dollars ($10,000.00) per month for services, which maximum cannot be exceeded without the prior written approval of Poniard before such services are rendered. In the event of early termination as provided for in Paragraph 2 hereof, Consultant

 

 

shall invoice (and Poniard shall pay) for services and expenses incurred through the date that notice is received.

 

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

 

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

 

6.                              Confidentiality .   All data, materials and information submitted or made available to Consultant by Poniard or by any other person or entity at the direction of Poniard, unless otherwise publicly available, and all data, materials and information, and other work developed by Consultant under this Agreement, shall be utilized by Consultant in connection with this Agreement only, shall be maintained in confidence and shall not be made available by Consultant to any other person or entity.

 

7.                              Ownership .

 

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

 

(b)                                  Consultant hereby assigns to Poniard or its designee all of Consultant’s right, title and interest in and to any Inventions, any patent applications relating thereto, and any patents granted thereon, and will execute any such formal Assignment documents that

 

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Poniard may request from time to time.  Consultant shall disclose such Inventions to Poniard promptly and in writing.  When requested, and at Poniard’s expense, Consultant will assist Poniard or Poniard’s designee, in efforts to protect Poniard’s proprietary and patent rights to such Inventions.

 

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

 

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

 

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

 

8.                              Insurance .  Consultant may or may not maintain a policy of liability insurance to cover any negligent acts committed by Consultant during the performance of any duties under this Agreement.

 

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

 

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

 

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governmental or regulatory authorities having jurisdiction over the subject matter of the services under this Agreement or any other laws and regulations application to such services.

 

11.                        Conflict of Interest .  Consultant certifies that Consultant does not have any conflict of interest or other contractual impediment that could preclude Consultant from carrying out Consultant’s duties and obligations under this Agreement.  Further, Consultant certifies that Consultant does not have any financial interest in Poniard (other than stock options granted during the term of employment) and will not benefit financially or otherwise by results of Consultant’s services under this Agreement, other than the fees stated in Paragraph 4 hereof.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

22.                        Survival of Obligations .  The provisions of Paragraph 6, 7, 9, 12, 17 and 20 shall survive termination or expiration of this Agreement.

 

23.                        Entire Agreement .  This Agreement represents the entire understanding of the parties regarding consulting services (except with respect to stock options held by Consultant as set forth in Section 5 of the Separation Agreement) and may not be modified except by written agreement of the parties and supersedes all prior written and/or oral agreements.

 

24.                        Credentials .  Consultant attaches to this Agreement Consultant’s Curriculum Vitae or other credentials, which credentials are attached as Appendix “A” and made a part hereof.

 

Poniard Pharmaceuticals, Inc.			Consultant
By:	/s/ Gerald McMahon		Name: David A. Karlin
Title: CEO			Signature:	/s/ David A. Karlin

 

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EXHIBIT B

 

STOCK OPTIONS

 

	Poniard Pharmaceuticals, Inc.	Page:1
Personnel Grant Status	ID:91-1251311	File:    Optsimt
	7000 Shoreline Ct.	Date:  11/6/2008
	Suite 270	Time: 2:28:10PM
	So. San Francisco, CA   94080
AS OF 11/6/2008
David KARLIN
100 Yerba Santa Avenue
Los Altos, CA. USA 94022

 

STOCK OPTIONS

 

Number		Grant Date		Plan		Type		Granted		Price			Exercised		Vested		Cancelled		Unvested		Outstanding		Exercisable
SP3058		7/1/2005		2004		ISO		41,666		$	3.72000		0		34,722		0		6,944		41,666		34,722
SP3086		4/29/2006		2004		ISO		36,138		$	7.50000		0		20,986		0		15,152		36,138		20,986
SP3087		4/29/2006		2004		NQ		5,528		$	7.50000		0		5,056		0		472		5,528		5,056
SP3214		6/14/2007		2004		NQ		8,750		$	5.98000		0		3,182		0		5,568		8,750		3,182
SP3215		6/14/2007		2004		NQ		18,750		$	5.98000		0		6,818		0		11,932		18,750		6,818
SP3265		6/14/2007		2004		NQ		2,815		$	3.66000		0		1,155		0		1,660		2,815		1,155
SP3266		6/14/2007		2004		NQ		56,172		$	3.66000		0		23,045		0		33,127		56,172		23,045
SP3273		6/14/2007		2004		NQ		6,771		$	3.14000		0		2,257		0		4,514		6,771		2,257
SP3274		6/14/2007		2004		NQ		58,229		$	3.14000		0		19,410		0		38,819		58,229		19,410
SP3305		6/14/2007		2004		NQ		2,500		$	5.98000		0		2,500		0		0		2,500		2,500
SP3354		6/14/2007		2004		NQ		28,133		$	3.66000		0		28,133		0		0		28,133		28,133
SP3364		6/14/2007		2004		NQ		58,080		$	3.66000		0		14,520		0		43,560		58,080		14,520
SP3417		1/3/2008		2004		ISO		20,415		$	4.18000		0		0		0		20,415		20,415		0
SP3418		1/3/2008		2004		NQ		19,585		$	4.18000		0		8,334		0		11,251		19,585		8,334
								363,532					0		170,118		0		193,414		363,532		170,118

 

 

EXHIBIT C

 

NEORX CORPORATION

 

INVENTION AND PROPRIETARY INFORMATION AGREEMENT

 

DAVID A. KARLIN

 

In an effort to define and clarify my rights and obligations as an employee, and the rights and obligations of NeoRx Corporation and any of its subsidiaries and affiliates to which its employees are assigned (hereinafter the “Company”); and

 

In recognition of the importance of confidential information, trade secrets and inventions to the Company; and

 

In consideration of my employment by the Company, any opportunities for advancement or reassignment that the Company may from time to time offer me, the training, contacts, experience and confidential information I will receive within the first month and throughout the course of such employment, the compensation paid to me in connection with such employment and any stock and/or stock options which have been or may be granted to me by the Company.

 

I agree as follows:

 

1.             For purposes of this Agreement, the terms:

 

(a)                                   “Inventions” means discoveries, developments, designs, improvements, inventions and works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. This includes, but is not limited to, any new machine, article of manufacture, biological material, method, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition of matter, design or configuration of any kind, or any improvement thereon, whether or not reduced to writing or practice, and

 

(b)                                  “Proprietary Information” means information and materials (biological, chemical or otherwise) not generally known or available outside the Company and information and materials entrusted to the Company by third parties. This includes, but is not limited to, trade secrets, confidential knowledge, ideas, mask works, source and object codes, biological materials such as nucleic acids, proteins, organisms, cell lines, antibodies or antigen source materials, or fragments thereof, and information which may relate, for example, to Inventions, research, development, manufacturing, business plans, personnel, purchasing, financial data, marketing or selling. Proprietary Information may include or may be contained in material such as drawings, samples, prototypes, data, procedures, specifications, reports, studies, customer or supplier lists, budgets, cost or price lists, compilations or computer programs, or may be in the nature of unwritten knowledge or know-how.

 

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2.             All Proprietary Information which is made available to me or which I conceive, create, develop, reduce to practice, or compile, either alone or with others, during the term of my employment shall be the exclusive property of the Company, and I hereby assign to the Company my entire right, title and interest in all such Proprietary Information. I will preserve in confidence and will not disclose or use, either during or after the term of my employment, any Proprietary Information, except as required in my work for the Company or as authorized in writing by the Company. With respect to Proprietary Information received by the Company from a third party, I will abide by any additional terms and conditions (including limitations on use) imposed upon the Company by the third party of which I am aware. Upon termination of my employment or upon request, I will deliver to the Company all forms of materials in my possession that contain or embody any Proprietary Information.

 

3.             I will not use in performance of my work for the Company or disclose to the Company any trade secret, confidential or proprietary information of any prior employer or other person or entity if and to the extent that such disclosure may cause any breach, default or violation of any obligation or duty that I owe to such other person or entity (e.g., under any agreement or applicable law). My compliance with this paragraph will not prohibit, restrict or impair the performance of my work, obligations and duties to the Company.

 

4.             I hereby assign to the Company my entire right, title and interest in and to all Inventions that I conceive, create, develop or reduce to practice, either alone or with others, during the term of my employment. I will promptly and fully record and disclose to the Company in writing any such Inventions and Proprietary Information that I make, conceive, or develop, in whole or in part, and either solely or jointly with others during the entire term of my employment by the Company.

 

NOTICE: Any assignment of Inventions required by this Agreement does not apply to an Invention for which no equipment, supplies, facility or trade secret information of the Company was used and which was developed entirely on the employee’s own time, unless (a) the Invention relates (i) directly to the business of the Company or (ii) to the Company’s actual or demonstrably anticipated research or development or (b) the Invention results from any work performed by the employee for the Company.

 

5.             During or after my employment, upon the Company’s request and at the Company’s expense, I will execute all papers in a timely manner and do all acts necessary to apply for, secure, maintain, defend or enforce patents, copyrights and any other legal rights in the United States and foreign countries in Inventions and Proprietary Information covered by Paragraphs 2 and 4, and I will execute all papers and do any and all acts necessary to document the assignment and transfer to the Company of my entire right, title and interest in and to such Inventions and Proprietary Information. If, for any reason, the Company is unable to secure my signature on any paper required under this Paragraph 5, I hereby irrevocably designate and appoint the Company and its duly authorized officers and agents as my agent and attorney-in-fact to act for me, and in my behalf, to execute and process any such papers and to do all other lawful acts to further the intent of this Paragraph 5.

 

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6.             I have prepared and attached hereto a list of all Inventions, patent applications and patents conceived, created, developed or reduced to practice by me or with others prior to my employment with the Company, which are subject to prior agreements or which I desire to exclude from this Agreement, or if no such list is attached, I hereby represent and warrant that there are no such Inventions, patent applications or patents. If in the course of my employment with the Company, I use or incorporate into a product or process an Invention not assigned by Paragraph 4 of this Agreement in which I have an interest, the Company is hereby granted a nonexclusive, fully paid-up, royalty-free, perpetual, worldwide license of my interest (with right to sublicense) to make, have made, use, sell, offer to sell and import such Invention without restriction.

 

7.             In order to aid in the protection of the Inventions and Proprietary Information of the Company, during the term of my employment and for one (1) year thereafter, I will not, for my benefit or the benefit of others without the Company’s written consent (a) engage in research or development with respect to the same or reasonably similar projects (e.g., type of product and indicator) on which I was performing research or development for the Company or (b) directly or indirectly be employed or involved with any business unit developing or exploiting any products or services that are competitive with products or services (i) being developed or exploited by the Company during my employment and (ii) on which I worked or about which I learned Proprietary Information during my employment with the Company.

 

8.             During the term of my employment and for one (1) year thereafter, I will not, directly or indirectly, recruit, solicit or induce in any way any employee, advisor or consultant of the Company to terminate his or her relationship with the Company, to engage in activities competitive with the Company or not to provide future services to the Company. During the term of my employment and for one (1) year thereafter, I will not, directly or indirectly, solicit, induce or encourage in any way any strategic partners, customers, suppliers or vendors to terminate or reduce their relationship with the Company or not to enter into any business or relationship with the Company.

 

9.             I acknowledge that any violation of this Agreement by me will cause irreparable injury to the Company, and I agree that the Company will be entitled to extraordinary relief in court, including, but not limited to, temporary restraining orders, preliminary injunctions and permanent injunctions without the necessity of posting a bond or other security and without prejudice to any other rights and remedies that the Company may have for a breach of this Agreement.

 

10.           This Agreement will be governed by and construed in accordance with the laws of the state of Washington (regardless of its choice-of-law provisions). I irrevocably consent to the jurisdiction and venue of the state and federal courts located in King County, Washington, in connection with any action relating to this Agreement. Further, I will not bring any action relating to this Agreement in any other court.

 

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11.           My execution, delivery and performance of this Agreement and the performance of my other obligations and duties to the Company will not cause any breach, default or violation of any employment, nondisclosure, confidentiality, consulting or other agreement to which I am a party or by which I may be bound.

 

12.           I will not (a) make any false, misleading or disparaging representations or statements with regard to the Company or the products or services of the Company, or (b) make any statement that may impair or otherwise adversely affect the goodwill or reputation of the Company.

 

13.           I agree and understand that nothing in this Agreement will confer any right with respect to continuation of my employment by the Company, nor will it interfere with the Company’s right to terminate my employment at any time.

 

14.           The obligations of this Agreement will continue beyond the termination of my employment and will be binding on my heirs, assigns and legal representatives. If any obligation herein is held to be too broad to be enforced, it will be construed to be enforceable only to the full extent permitted by law. This Agreement is for the benefit of the Company, its successors and assigns (including all present and future subsidiaries, affiliates, joint ventures and associated companies) and is not conditioned on my employment for any period of time or compensation therefor.

 

 

I HAVE READ AND FULLY UNDERSTOOD THIS AGREEMENT.

 

 

	/s/ David A. Karlin
	Signature – David A. Karlin
	Date	6/23/2005

 

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PLEASE CHOOSE ONE OF THE FOLLOWING OPTIONS BELOW:

 

x		I have no inventions nor am I an inventor on any patent application or patent as of the above date.
o		I have no inventions nor am I an inventor on any patent application or patent other than with NeoRx Corporation.
o		The following is a list of my inventions, patent applications or patents prior to my employment with NeoRx Corporation:

 

 

	/s/ David A. Karlin
	Employee – David A. Karlin
	/s/ Kathryn Knowles
	NeoRx Witness

 

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EXHIBIT D

 

PONIARD PHARMACEUTICALS, INC.
AMENDED AND RESTATED
KEY EXECUTIVE SEVERANCE AGREEMENT

 

This Amended and Restated Key Executive Severance Agreement (this “ Agreement ”), dated as of March 3, 2008, is entered into by and between PONIARD PHARMACEUTICALS, INC., a Washington corporation (formerly known as NeoRx Corporation and as supplemented by Section 10, the “ Company ”), and DAVID KARLIN (the “ Executive ”).

 

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 th