Exhibit 10.30
PONIARD PHARMACEUTICALS, INC.
AMENDED AND RESTATED
KEY EMPLOYEE SEVERANCE AGREEMENT
This Amended and Restated Key
Employee Severance 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 10 hereof, the “
Company ”), and Michael K. Jackson (the “
Employee ”) 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 Employee, notwithstanding the fact that the
Employee does not have any form of traditional employment contract
or other assurance of job security. The Board believes it is
imperative to diminish any distraction of the Employee arising from
the personal uncertainty and insecurity that arises in the absence
of any assurance of job security by providing the Employee with
reasonable compensation and benefit arrangements in the event of
termination of the Employee’s employment by the Company under
certain defined circumstances.
In order to accomplish these
objectives, the Board has caused the Company to enter into this
Agreement.
1.
Term
The initial term of this Agreement
(the “ 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 party at least
nine (9) months prior to the end of the Initial Term or any
Renewal Term. 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 Employee.
2.
Employment at Will
The Employee and the Company
acknowledge that, except as may otherwise be provided under any
other written agreement between the Employee and the Company, the
employment of the Employee by the Company or any affiliated
companies is “at will” and may be terminated by either
the Employee or the Company or its affiliated companies at any time
with or without cause, subject to the termination payments
prescribed herein.
3.
Attention and
Effort
During any period of time that the
Employee remains in the employ of the Company, and excluding any
periods of vacation and sick leave to which the Employee is
entitled, the Employee will devote all of the Employee’s
productive time, ability, attention and effort to the business and
affairs of the Company and the discharge of the responsibilities
assigned to the
Employee hereunder, and will seek to
perform faithfully and efficiently such responsibilities. It
shall not be a violation of this Agreement for the Employee 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 Employee’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 Employee prior to the Term, the continued conduct
of such activities (or the conduct of activities similar in nature
and scope thereto) during the Term shall not thereafter be deemed
to interfere with the performance of the Employee’s
responsibilities to the Company.
4.
Termination
During the Term, employment of the
Employee may be terminated as follows, but, in any case, the
nondisclosure provisions set forth in Section 7 hereof shall
survive the termination of this Agreement and the termination of
the Employee’s employment with the Company:
4.1
Termination by the Company or the
Employee
At any time during the Term, the
Company may terminate the employment of the Employee with or
without Cause (as defined below), and the Employee may terminate
the Employee’s employment for Good Reason (as defined below)
or for any reason, upon giving a Notice of Termination (as defined
below).
4.2
Automatic
Termination
This Agreement and the
Employee’s employment during the Term shall terminate
automatically upon the death or Total Disability of the
Employee. The term “ Total Disability
” as used herein shall mean the Employee’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 Employee, to perform
the Employee’s essential duties 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 Employee’s control,
unless the Employee is granted a leave of absence by the
Board.
4.3
Notice of
Termination
Any termination by the Company or by
the Employee during the Term shall be communicated by a Notice of
Termination to the other party given in accordance with
Section 9 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 Employee’s employment
under the provision so indicated. The failure by the Employee
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 Employee or the Company
hereunder or preclude the Employee or the Company from asserting
such fact or circumstance in enforcing the Employee’s or the
Company’s rights hereunder.
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4.4
Date of
Termination
“ Date of
Termination ” means (a) if the Employee’s
employment is terminated by reason of death, the last day of the
calendar month in which the Employee’s death occurs,
(b) if the Employee’s employment is terminated by reason
of Total Disability, immediately upon a determination by the
Company of the Employee’s Total Disability, and (c) in
all other cases, ten (10) days after the date of personal
delivery or mailing of the Notice of Termination. The
Employee’s employment and performance of services will
continue during such ten (10) day period; provided, however,
that the Company may, upon notice to the Employee and without
reducing the Employee’s compensation during such period,
excuse the Employee from any or all of the Employee’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.
5.
Termination
Payments
In the event of termination of the
Employee’s employment during the Term, all compensation and
benefits shall terminate, except as specifically provided in this
Section 5.
5.1
Termination by the Company Other
Than for Cause or by the Employee for Good Reason
If during the Term the Company
terminates the Employee’s employment other than for Cause or
the Employee terminates the Employee’s employment for Good
Reason, the Employee shall be entitled to:
(a)
receive payment of the following
accrued obligations (the “ Accrued Obligations
”):
(i)
the Employee’s then current
annual base salary through the Date of Termination to the extent
not theretofore paid;
(ii)
any compensation previously deferred
by the Employee (together with accrued interest or earnings
thereon, if any); and
(iii)
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 six
(6) months after the Date of Termination or until the Employee
qualifies for comparable medical and dental insurance benefits from
another employer, whichever occurs first, the Employee’s
premiums for health insurance benefit continuation for the Employee
and the Employee’s family members, if applicable, that the
Company provides to the Employee under the provisions of the
federal Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended (“ COBRA ”), to
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the extent that the Company would
have paid such premiums had the Employee remained employed by the
Company (such continued payment is hereinafter referred to as
“ COBRA Continuation ”); and
(c)
an amount as severance pay equal to
fifty percent (50%) of the Employee’s then current annual
base salary for the fiscal year in which the Date of Termination
occurs, subject to payment as set forth in Sections 5.5 and 5.9
hereof.
5.2
Termination for Cause or Other
Than for Good Reason
If during the Term the
Employee’s employment shall be terminated by the Company for
Cause or by the Employee for other than Good Reason, this Agreement
shall terminate without further obligation on the part of the
Company to the Employee, other than the Company’s obligation
to pay the Employee the Accrued Obligations to the extent
theretofore unpaid.
5.3
Expiration of Term
In the event the Employee’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 Employee.
5.4
Termination Because of Death or
Total Disability
If during the Term the
Employee’s employment is terminated by reason of the
Employee’s death or Total Disability, this Agreement shall
terminate automatically without further obligation on the part of
the Company to the Employee or the Employee’s legal
representatives under this Agreement, other than the
Company’s obligation to pay the Employee the Accrued
Obligations (which shall be paid to the Employee’s estate or
beneficiary, as applicable in the case of the Employee’s
death) and to provide COBRA Continuation.
5.5
Payment Schedule
All payments of Accrued Obligations,
or any portion thereof payable pursuant to this Section 5,
other than deferred compensation pursuant to
Section 5.1(a)(ii) hereof, shall be made to the Employee
within ten (10) working days of the Date of Termination.
Deferred compensation pursuant to
Section 5.1(a)(ii) hereof shall be payable pursuant to
the terms of the deferred compensation program. Any severance
payments payable to the Employee pursuant to
Section 5.1(c) hereof shall be made to the Employee in
the form of salary continuation, payable at normal payroll
intervals during the six (6) month period following the Date
of Termination. Notwithstanding the preceding provisions of
this Section 5.5, 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 19.1 hereof) upon
Separation from Service, the provisions of Section 19.1 hereof
shall apply. Section 5.8 hereof must be satisfied to
receive payments and benefits under this Agreement.
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5.6
Cause
For purposes of this Agreement,
“ Cause ” means cause given by the
Employee 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 Employee or any directions of the
Board or senior management of the Company reasonably consistent
with those duties;
(b)
persistent failure to carry out any
lawful duties of the Employee or any directions of the Board or
senior management reasonably consistent with those duties;
provided, however, that the Employee has been given reasonable
notice and opportunity to correct any such failure;
(c)
violation by the Employee 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 Employee of
alcohol or controlled substances; deception, fraud,
misrepresentation or dishonesty by the Employee; or any incident
materially compromising the Employee’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 Employee, subject to the notice
and opportunity-to-cure requirements of Section 8
hereof.
5.7
Good Reason
For purposes of this Agreement,
“ Good Reason ” means:
(a)
material reduction of the
Employee’s annual base salary to a level below the level in
effect on the date of this Agreement, regardless of any change in
the Employee’s duties or responsibilities;
(b)
the assignment to the Employee of
any duties materially inconsistent with the Employee’s
position, authority, duties or responsibilities 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 Employee;
(c)
the Company’s requiring the
Employee to be based at any office or location more than fifty (50)
miles from the city in
