EXHIBIT 10.3


 


ALLOS THERAPEUTICS, INC.


 


SEVERANCE BENEFIT PLAN


Adopted: January 16, 2001


Amended and Restated: December 11, 2007


 


1.                                      INTRODUCTION.


 


The purpose of this Severance Benefit Plan (the “Plan”)
is to provide for the payment of severance benefits to certain eligible
employees of Allos Therapeutics, Inc. (the “Company”) whose employment
with the Company is involuntarily terminated and who suffer a period of
unemployment as a result of such involuntary termination.  Except as set forth herein with respect to
individual separation agreements, this Plan shall supersede any severance
benefit plan, policy or practice previously maintained by the Company.  This Plan is intended to be a welfare benefit
plan described under Section 3(1) of the Employee Retirement Income
Security Act of 1974 (“ERISA”).  For the
purposes of this Plan, “Severance Benefit Schedule” means the applicable
severance benefit schedule(s) approved from time to time by the Company’s
Board of Directors and attached hereto.


 


2.                                      ELIGIBILITY
FOR BENEFITS.


 


(a)                                  General
Rules.  Subject to the requirements
set forth in this Section, the Company will grant severance benefits under the
Plan to Eligible Employees.


 


(i)                                    “Eligible
Employees” are all full-time employees whose employment with the Company is
involuntarily terminated (including a termination by the employee for “Good
Reason,” as defined in the applicable Severance Benefit Schedule) due to a
group termination, the closure or reorganization of a facility or operation, a
change in ownership, or such other event, but only as the Company specifically
identifies such an event in the applicable Severance Benefit Schedule as a
termination of employment subject to the provisions of this Plan.


 


The determination as to
who are Eligible Employees and whether a termination of employment event for
purposes of this Plan has occurred and whether the provisions of this Plan
shall apply shall be made by the Company in its sole discretion.  For purposes of this Plan, full-time
employees include those regular hire employees who are regularly scheduled to
work forty (40) hours or more per week. 
Regular hire employees are those employees who are classified as
employees under Section 3121(d) of the Internal Revenue Code of 1986,
as amended (the “Code”), and who are paid on the United States payroll of the
Company; provided, however, temporary employees,
leased employees, independent contractors, consultants, loaned employees,
interns and co-op employees, as classified on the Company’s personnel records,
are not eligible to receive any benefits under the Plan.


 


(ii)                                In
order to be eligible to receive benefits under the Plan, an Eligible Employee
must remain on the job until his or her date of termination as scheduled by the
Company or until his or her termination for “Good Reason” (as defined in the
applicable 


 

















 


Severance Benefit Schedule),
if termination for “Good Reason” is an applicable payment event under such
Severance Benefit Schedule.


 


(iii)                            In
order to be eligible to receive benefits under the Plan, an Eligible Employee
must execute a general waiver and release on the form provided by the Company; provided, however, that the Company, in its sole discretion,
may, from time to time, elect to provide a basic level of severance benefits
that an Eligible Employee may receive without the execution of such a general
waiver and release, and to provide enhanced severance benefits that an Eligible
Employee may receive only if the Eligible Employee executes a general waiver
and release.  All waivers and releases
must be on forms provided by the Company.


 


(b)                                  Exceptions.  An employee who otherwise is an Eligible
Employee will not receive benefits under the Plan in any of the following
circumstances:


 


(i)                                    The
employee has executed an individually negotiated employment contract or
agreement with the Company relating to severance benefits that is in effect on
his or her termination date.  Such
employee’s severance benefit, if any, shall be governed by the terms of such
individually negotiated employment contract or agreement.


 


(ii)                                The
employee’s employment terminates for any reason other than a  reason specified in Section 2(a)(i).


 


(iii)                            The
employee voluntarily terminates employment with the Company.  Voluntary terminations include, but are not
limited to, resignation, retirement, or failure to return from a leave of
absence on the scheduled date.  Voluntary
terminations also include job abandonment and all other voluntary terminations
as described in the Employee Handbook in effect at the time of the employee’s
termination of employment.  Voluntary
terminations do not include a termination for “Good Reason” if such a “Good
Reason” termination is an applicable payment event under an applicable
Severance Benefit Schedule.


 


(iv)                               The
employee voluntarily or involuntarily terminates employment with the Company in
order to accept employment with another entity that is wholly or partly owned
(directly or indirectly) by the Company or the parent or other affiliate of the
Company.


 


(v)                                   The
employee is offered immediate reemployment following a change in ownership of
the Company by the successor to the Company in a substantially equal to or
greater position at a pay equal to or greater than the employee’s pay at the
time of such event.  For purposes of this
provision, “immediate reemployment” means that the employee’s employment with
the successor to the Company results in uninterrupted employment such that the
employee does not suffer a lapse in pay as a result of the change in ownership
of the Company.


 


3.                                      AMOUNT
OF BENEFIT.


 


(a)                                  Severance
benefits payable under this Plan shall be as specified on the applicable
Severance Benefit Schedule, which shall be determined by the Company and may be
amended by the Company from time to time.


 


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(b)                                  Notwithstanding
any other provision of the Plan to the contrary, the total severance payments
to any Eligible Employee under this Plan shall not exceed two times the
Eligible Employee’s annual compensation earned during the calendar year
immediately preceding the Eligible Employee’s termination of employment
(calculated on an annualized basis).


 


(c)                                  Notwithstanding
any other provision of the Plan to the contrary, any benefits payable to an
Eligible Employee under this Plan shall be offset, to the maximum extent
permitted by law, by any severance benefits payable by the Company to such
individual under any other arrangement covering the individual.


 


4.                                      TIME
OF PAYMENT AND FORM OF BENEFIT; INDEBTEDNESS.


 


(a)                                  The
Company reserves the right to determine whether the severance benefits under
the Plan will be paid in a single sum or in installments and to choose the
timing of such payments, provided, however, that all payments under this Plan
will be completed within twenty-four (24) months of an Eligible Employee’s
termination date. In no event shall payment of any Plan benefit be made prior
to the Eligible Employee’s termination date.


 


(b)                                  If
a terminating employee is indebted to the Company at his or her termination
date, the Company reserves the right to offset any severance payments under the
Plan by the amount of such indebtedness.


 


5.                                      REEMPLOYMENT.


 


In the event of an Eligible Employee’s reemployment by
the Company, or an affiliate of the Company, during the Severance Period (as
defined in the next paragraph), such Eligible Employee will be required to
repay to the Company a prorated portion of the total cash benefits received by
the Eligible Employee under this Plan. 
The prorated portion of such cash benefits that must be repaid by the
Eligible Employee is an amount equal to such cash benefits received under this
Plan by the Eligible Employee upon his or her termination of employment
multiplied by a fraction, the numerator of which is the number of weeks in the
Severance Period reduced by the number of weeks between the Eligible Employee’s
termination of employment date and the Eligible Employee’s rehire date, and the
denominator of which is the Eligible Employee’s Severance Period.  In determining the numerator for purposes of
such fraction, if the numerator is not a whole number, then the numerator shall
be rounded down to the next smallest whole number of weeks.


 


For purposes of this Section 5 and Section 8,
the “Severance Period” is the period equal to the number of weeks of severance
pay received by the Eligible Employee under this Plan.  In the event that the Severance Period
includes a fractional week, the Severance Period shall be rounded to the
nearest whole number.


 


6.                                      RIGHT
TO INTERPRET PLAN; AMEND AND TERMINATE; OTHER ARRANGEMENTS.


 


(a)                                  Exclusive
Discretion.  The Plan Administrator
shall have the exclusive discretion and authority to establish rules, forms,
and procedures for the administration of the Plan, and to construe and
interpret the Plan and to decide any and all questions of fact, interpretation,


 


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definition, computation
or administration arising in connection with the operation of the Plan,
including, but not limited to, the eligibility to participate in the Plan,
applicability of the Plan to a specific termination of employment event, and
amount of benefits paid under the Plan. 
The rules, interpretations, computations and other actions of the Plan
Administrator shall be binding and conclusive on all persons.


 


(b)                                  Amendment
or Termination.  The Company also
reserves the right to amend or discontinue this Plan or the benefits provided
hereunder at any time; provided, however, that no such amendment or termination
shall affect the right to any unpaid benefit of any Eligible Employee whose
termination date has occurred prior to amendment or termination of the Plan.


 


(c)                                  Other
Severance Arrangements.  The Company
reserves the right to make other arrangements regarding severance benefits in
special circumstances.  The foregoing
notwithstanding, in no event shall any individual receive from the Company any
severance benefit greater than the benefit provided under Section 3,
unless such individual executes, as a condition upon the receipt of such
additional benefit, a waiver and release of any and all claims that such
individual may have against the Company, on the form provided by the Company.


 


7.                                      CONTINUATION
OF EMPLOYMENT BENEFITS.


 


(a)                                  COBRA
Continuation.  Each Eligible Employee
who is enrolled in a health, dental or vision plan sponsored by the Company may
be eligible to continue coverage under such health, dental or vision plan (or
to convert to an individual policy) pursuant to the requirements of the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”).  The Company will notify the individual of any
such right to continue health coverage.


 


(b)                                  Other
Employee Benefits. Unless otherwise specified by the Company in the
applicable Severance Benefit Schedule, all non-health benefits (such as life
insurance and disability coverage) terminate as of the employee’s last day of
active, physically present on the job, employment with the Company, as
determined by the Company (except to the extent that any conversion privilege
is available thereunder).


 


8.                                      OUTPLACEMENT
BENEFITS.


 


The Company, in its sole
discretion, shall determine from time to time the outplacement benefits, if
any, available for Eligible Employees under this Plan.


 


9.                                      CLAIMS,
INQUIRIES, AND APPEALS.


 


(a)                                  Applications
for Benefits and Inquiries.  Any
application for benefits, inquiries about the Plan or inquiries about present
or future rights under the Plan must be submitted to the Plan Administrator in
writing.  The Plan Administrator is:


 


Allos Therapeutics, Inc.


Attention:  Human Resources


11080 CirclePoint
Road, Suite 200


Westminster, CO
80020


 


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(b)                                  Denial
of Claims.  In the event that any
application for benefits is denied in whole or in part, the Plan Administrator
must notify the applicant, in writing, of the denial of the application, and of
the applicant’s right to review the denial. 
The written notice of denial will be set forth in a manner designed to
be understood by the employee, and will include specific reasons for the
denial, specific references to the Plan provision upon which the denial is
based, a description of any information or material that the Plan Administrator
needs to complete the review and an explanation of the Plan’s review procedure.


 


This written notice will be given to the employee
within 90 days after the Plan Administrator receives the application,
unless special circumstances require an extension of time, in which case, the
Plan Administrator has up to an additional 90 days for processing the
application.  If an extension of time for
processing is required, written notice of the extension will be furnished to
the applicant before the end of the initial 90-day period.


 


This notice of extension will describe the special
circumstances necessitating the additional time and the date by which the Plan
Administrator is to render its decision on the application.  If written notice of denial of the
application for benefits is not furnished within the specified time, the
application shall be deemed to be denied. 
The applicant will then be permitted to appeal the denial in accordance
with the Review Procedure described below.


 


(c)                                  Request
for a Review.  Any person (or that
person’s authorized representative) for whom an application for benefits is
denied (or deemed denied), in whole or in part, may appeal the denial by
submitting a request for a review to the Plan Administrator within 60 days
after the application is denied (or deemed denied).  The Plan Administrator will give the
applicant (or his or her representative) an opportunity to review pertinent
documents in preparing a request for a review. 
A request for a review shall be in writing and shall be addressed to:


 


Allos Therapeutics, Inc.


Attention:  Human Resources


11080 CirclePoint
Road, Suite 200


Westminster, CO
80020


 


A request for review must
set forth all of the grounds on which it is based, all facts in support of the
request and any other matters that the applicant feels are pertinent.  The Plan Administrator may require the
applicant to submit additional facts, documents or other material as it may
find necessary or appropriate in making its review.


 


(d)                                  Decision
on Review.  The Plan Administrator
will act on each request for review within 60 days after receipt of the
request, unless special circumstances require an extension of time (not to
exceed an additional 60 days), for processing the request for a
review.  If an extension for review is
required, written notice of the extension will be furnished to the applicant
within the initial 60-day period.  The
Plan Administrator will give prompt, written notice of its decision to the
applicant.  In the event that the Plan
Administrator confirms the denial of the application for benefits in whole or
in part, the notice will outline, in a manner calculated to be understood by
the applicant, the specific Plan provisions upon which the decision is
based.  If written notice of the Plan
Administrator’s decision is not given to the applicant within the time
prescribed in this Subsection (d), the application will be deemed denied
on review.


 


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(e)                                  Rules and
Procedures.  The Plan Administrator
will establish rules and procedures, consistent with the Plan and with
ERISA, as necessary and appropriate in carrying out its responsibilities in
reviewing benefit claims.  The Plan
Administrator may require an applicant who wishes to submit additional
information in connection with an appeal from the denial (or deemed denial) of
benefits to do so at the applicant’s own expense.


 


(f)                                    Exhaustion
of Remedies.  No legal action for benefits
under the Plan may be brought until the claimant (i) has submitted a
written application for benefits in accordance with the procedures described by
subparagraph 9(a) above, (ii) has been notified by the Plan
Administrator that the application is denied (or the application is deemed
denied due to the Plan Administrator’s failure to act on it within the
established time period), (iii) has filed a written request for a review
of the application in accordance with the appeal procedure described in subparagraph
9(c) above and (iv) has been notified in writing that the Plan
Administrator has denied the appeal (or the appeal is deemed to be denied due
to the Plan Administrator’s failure to take any action on the claim within the
time prescribed by subparagraph 9(d) above).


 


10.                               OTHER
PLAN INFORMATION.


 


(a)                                  Employer
and Plan Identification Numbers.  The
Employer Identification Number assigned to the Company (which is the “Plan
Sponsor” as that term is used in ERISA) by the Internal Revenue Service is
54-1655029.  The Plan Number assigned to
the Plan by the Plan Sponsor pursuant to the instructions of the Internal
Revenue Service is 502.


 


(b)                                  Ending
Date for Plan’s Fiscal Year.  The
date of the end of the fiscal year for the purpose of maintaining the Plan’s records
is December 31.


 


(c)                                  Agent
for the Service of Legal Process.  The
agent for the service of legal process with respect to the Plan is Allos
Therapeutics, Inc., 11080 CirclePoint Road, Suite 200, Westminster,
CO 80020


 


(d)                                  Plan
Sponsor and Administrator.  The “Plan
Sponsor” and the “Plan Administrator” of the Plan is Allos Therapeutics, Inc.,
11080 CirclePoint Road, Suite 200, Westminster, CO 80020


 


(e)                                  Telephone
Number.  The Plan Sponsor’s and Plan
Administrator’s telephone number is (303) 426-6262.  The Plan Administrator is the named fiduciary
charged with the responsibility for administering the Plan.


 


11.                               STATEMENT
OF ERISA RIGHTS.


 


Participants in this Plan (which is a welfare benefit
plan sponsored by Allos Therapeutics, Inc.) are entitled to certain rights
and protections under ERISA.  If you are
an Eligible Employee, you are considered a participant in the Plan and, under
ERISA, you are entitled to:


 


(a)                                  Examine,
without charge, at the Plan Administrator’s office and at other specified
locations, such as work sites, all Plan documents and copies of all documents
filed by the Plan with the U.S. Department of Labor, such as detailed annual
reports;


 


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(b)                                  Obtain
copies of all Plan documents and Plan information upon written request to the
Plan Administrator.  The Administrator
may make a reasonable charge for the copies;


 


(c)                                  Receive
a summary of the Plan’s annual financial report, in the case of a plan which is
required to file an annual financial report with the Department of Labor.  (Generally, all pension plans and welfare
plans with 100 or more participants must file these annual reports.)


 


In addition to creating rights for Plan participants,
ERISA imposes duties upon the people responsible for the operation of the
employee benefit plan.  The people who
operate the Plan, called “fiduciaries” of the Plan, have a duty to do so
prudently and in the interest of you and other Plan participants and
beneficiaries.


 


No one, including your employer or any other person,
may fire you or otherwise discriminate against you in any way to prevent you
from obtaining a Plan benefit or exercising your rights under ERISA.  If your claim for a Plan benefit is denied in
whole or in part, you must receive a written explanation of the reason for the
denial.  You have the right to have the
Plan review and reconsider your claim.


 


Under ERISA, there are steps you can take to enforce
the above rights.  For instance, if you
request materials from the Plan and do not receive them within 30 days,
you may file suit in a federal court.  In
such a case, the court may require the Plan Administrator to provide the
materials and pay you up to $110 a day until you receive the materials, unless
the materials were not sent because of reasons beyond the control of the Plan
Administrator.  If you have a claim for
benefits that is denied or ignored, in whole or in part, you may file suit in a
state or federal court.  If it should
happen that the Plan fiduciaries misuse the Plan’s money, or if you are
discriminated against for asserting your rights, you may seek assistance from
the U.S. Department of Labor, or you may file suit in a federal
court.  The court will decide who should
pay court costs and legal fees.  If you
are successful, the court may order the person you have sued to pay these costs
and fees.  If you lose, the court may
order you to pay these costs and fees, for example, if it finds your claim is
frivolous.


 


If you have any questions about the Plan, you should
contact the Plan Administrator.  If you
have any questions about your rights under ERISA, you should contact the
nearest office of the Pension and Welfare Benefits Administration, U.S.
Department of Labor, listed in your telephone directory or the Division of
Technical Assistance and Inquiries, Pension and Welfare Benefits
Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W.,
Washington, DC 20210.


 


12.                               NO
IMPLIED EMPLOYMENT CONTRACT.


 


The Plan shall not be deemed (i) to give any
employee or other person any right to be retained in the employ of the Company
nor (ii) to interfere with the right of the Company to discharge any
employee or other person at any time and for any reason, which right is hereby
reserved.


 


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13.                               LEGAL
CONSTRUCTION.


 


This Plan is intended to be governed by and shall be
construed in accordance with the Employee Retirement Income Security Act of
1974 (“ERISA”) and, to the extent not preempted by ERISA, the laws of the State
of Colorado.


 


14.                               BASIS
OF PAYMENTS TO AND FROM PLAN.


 


All benefits under the Plan shall be paid by the
Company.  The Plan shall be unfunded, and
benefits hereunder shall be paid only from the general assets of the Company.


 


15.                               CODE
SECTION 409A COMPLIANCE.


 


To the extent any
payments or benefits pursuant to the Plan (a) are paid from the date of
termination of Eligible Employee’s employment through March 15 of the
calendar year following such termination, such severance benefits are intended
to constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations and thus payable pursuant to the “short-term deferral”
rule set forth in Section 1.409A-1(b)(4) of the Treasury
Regulations; (b) are paid following said March 15, such severance benefits
are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations made upon an involuntary separation from service and
payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury
Regulations, to the maximum extent permitted by said provision, and (c) are
in excess of the amounts specified in clauses (a) and (b) of this
paragraph, shall (unless otherwise exempt under Treasury Regulations) be
considered separate payments subject to the distribution requirements of Section 409A(a)(2)(A) of
the Code, including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of
the Code that payments or benefits be delayed until 6 months after Eligible
Employee’s separation from service if Eligible Employee is a “specified
employee” within the meaning of the aforesaid section of the Code at the time
of such separation from service.  In the
event that a 6-month delay of any such separation payments or benefits is
required, on the first regularly scheduled pay date following the conclusion of
the delay period the Eligible Employee shall receive a lump sum payment or
benefit in an amount equal to the separation payments and benefits that were so
delayed, and any remaining separation payments or benefits shall be paid on the
same basis and at the same time as otherwise specified pursuant to the Plan
(subject to applicable tax withholdings and deductions).


 


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