EXHIBIT
10.4


 


ALLOS THERAPEUTICS, INC.


 


CHANGE OF CONTROL SEVERANCE BENEFIT SCHEDULE


Adopted: January 16, 2001


Amended and Restated: February 23, 2009


 


This
Change of Control Severance Benefit Schedule (this “Schedule”)
is made and adopted by the Board of Directors (the “Board”)
of Allos Therapeutics, Inc. (the “Company) pursuant
to the Company’s Severance Benefit Plan (the “Plan”).  The Company reserves the right to establish
severance guidelines on an action-by-action basis.  This Schedule may be altered, amended or
cancelled at any time in the sole discretion of the Company.  This Schedule supersedes and replaces all
prior severance benefit schedules promulgated under the Plan related to
terminations pursuant to a Change in Control (as defined herein).


 


As a
condition to receiving any severance benefits hereunder, an Eligible Employee
(as defined in the Plan) must sign a general release releasing the Company from
all claims known or unknown that such Eligible Employee may have against the
Company (the “Release”).  No
benefits will be paid until the Company has received a signed Release.  The contents of the Release will vary,
depending on the state in which the affected employee(s) resides, the age
of the employee(s), and whether two or more employees are affected by the same
action.  Consult with legal for the
specific Release to be used.


 


Nothing
contained in the Plan or this Schedule alters or amends employee’s status as an
at-will employee.  As an at-will employee
either the employee or the Company may terminate the employment relationship
with or without cause, with or without notice.


 


DEFINITIONS


 


Change
in Control.  For purposes of
this Schedule, a “Change in Control”
shall mean: (a) a sale, lease, exchange or other transfer in one
transaction or a series of related transactions of all or substantially all of
the assets of the Company (other than the transfer of the Company’s assets to a
majority-owned subsidiary corporation); (b) a merger or consolidation in
which the Company is not the surviving corporation (unless the holders of the
Company’s outstanding voting stock immediately prior to such transaction own,
immediately after such transaction, securities representing at least fifty
percent (50%) of the voting power of the corporation or other entity surviving
such transaction); (c) a reverse merger in which the Company is the
surviving corporation but the shares of the Company’s common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise (unless
the holders of the Company’s outstanding voting stock immediately prior to such
transaction own, immediately after such transaction, securities representing at
least fifty percent (50%) of the voting power of the Company); or (d) any
transaction or series of related transactions in which in excess of fifty
percent (50%) of the Company’s voting power is transferred.


 


Good
Reason.  For purposes of this
Schedule, “Good Reason” shall mean
any one of the following events that occurs without the Eligible Employee’s
consent on or after the 


 


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commencement
of the Eligible Employee’s employment provided that the Eligible Employee has
first provided written notice to the Chief Executive Officer of the Company (or
the surviving corporation, as applicable) of the occurrence of such event(s) within
ninety (90) days of the first such occurrence and the Company (or surviving
corporation) has not cured such event(s) within thirty (30) days after the
Eligible Employee’s written notice is received by the Chief Executive Officer
of the Company (or by the surviving corporation):  (i) a reduction of the Eligible Employee’s
then existing annual salary base by more than ten percent (10%), unless the
Eligible Employee accepts such reduction or such reduction is done in
conjunction with similar reductions for similarly situated employees of the
Company; (ii) any request by the Company (or any surviving or acquiring
corporation) that the Eligible Employee relocate to a new principal base of
operations that would increase the Eligible Employee’s one-way commute distance
by more than thirty-five (35) miles from his then-principal base of operations,
unless the Eligible Employee accepts such relocation opportunity; or (iii) if,
following a Change in Control, the Eligible Employee’s benefits and
responsibilities are materially reduced by comparison to the Eligible Employee’s
benefits and responsibilities in effect immediately prior to such reduction.


 


Just
Cause.  For purposes of this Schedule, “Just Cause” shall mean the occurrence of
one or more of the following: (i) the Eligible Employee’s conviction of a
felony or a crime involving moral turpitude or dishonesty; (ii) the
Eligible Employee’s participation in a fraud or act of dishonesty against the
Company; (iii) the Eligible Employee’s intentional and material damage to
the Company’s property; (iv) the Eligible Employee’s material breach of
the Company’s written policies or the Eligible Employee’s Confidentiality and
Inventions Assignment Agreement with the Company that is not remedied by the
Eligible Employee within fourteen (14) days of written notice of such breach
from the Company; or (v) conduct by the Eligible Employee that demonstrates
the Eligible Employee’s gross unfitness to serve as an employee of the Company,
as determined in the sole discretion of the Company’s Chief Executive
Officer.  The Eligible Employee’s
physical or mental disability or death shall not constitute Just Cause
hereunder.


 


SEVERANCE
BENEFITS:


 


In
the event that the Company (or any surviving or acquiring corporation)
terminates an Eligible Employee’s employment without Just Cause or the Eligible
Employee resigns for Good Reason within two (2) month prior to or six (6) months
following the effective date of a Change in Control (a “Change in
Control Termination”), and upon the execution of a Release, the
Eligible Employee shall be entitled to receive the following severance
benefits:


 


Cash
Severance:


 


Director
and Above: If the Eligible Employee
holds a position with the Company of director or above as of the first to occur
of the effective date of the Change in Control or Change of Control Termination,
the Company (or any surviving or acquiring corporation) shall pay the Eligible
Employee a lump-sum cash payment in an amount equal to (i) six (6) months
of the Eligible Employee’s base salary then in effect (excluding overtime and
bonuses) plus an additional two (2) weeks base salary (excluding overtime
and bonuses) for each twelve (12) months of continuous service with the
Company, up to a maximum of fifty-two (52) weeks, plus (ii) the 


 


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Eligible
Employee’s target bonus award for the year in which the Eligible Employee’s
employment terminates, prorated through the date of the Change in Control
Termination.  Eligible Employees who are
entitled to severance under this paragraph with more than five (5) but
fewer than twelve (12) full months of continuous service with the Company shall
be deemed to be in continuous service with the Company for twelve (12) full months.


 


Below
Director: If the Eligible Employee holds a position with the
Company below director as of the first to occur of the effective date of the
Change in Control or Change of Control Termination, the Company (or any
surviving or acquiring corporation) shall pay the Eligible Employee a lump-sum
cash payment in an amount equal to (i) three (3) months of the
Eligible Employee’s base salary then in effect (excluding overtime and bonuses)
plus an additional two (2) weeks base salary (excluding overtime and
bonuses) for each twelve (12) months of continuous service with the Company, up
to a maximum of fifty-two (52) weeks, plus (ii) the Eligible Employee’s
target bonus award for the year in which the Eligible Employee’s employment
terminates, prorated through the date of the Change in Control
Termination.  Eligible Employees who are
entitled to severance under this paragraph with more than five (5) but
fewer than twelve (12) full months of continuous service with the Company shall
be deemed to be in continuous service with the Company for twelve (12) full months.


 


Acceleration
of Vesting: Notwithstanding anything to the contrary contained the
Eligible Employee’s stock option or restricted stock grant agreements or the
Company’s equity incentive plans, in the event the surviving or acquiring
corporation in any Change in Control assumes the Eligible Employee’s stock
options and/or restricted stock, as applicable, or substitutes similar stock
options or stock awards for the Eligible Employee’s stock options and/or
restricted stock, as applicable, in accordance with the terms of the Company’s
equity incentive plans, then the vesting of all of the Eligible Employee’s
stock options and/or restricted stock (or any substitute stock options or stock
awards), as applicable, shall be accelerated in full.


 


Insurance
Continuation: The Company (or any surviving or acquiring
corporation) shall pay the premiums of the Eligible Employee’s group health
insurance COBRA continuation coverage, including coverage for eligible
dependents, for the number of weeks that are used to determine the amount of
the Eligible Employee’s cash severance in accordance with the provisions above (but
not including the Eligible Employee’s pro-rata target bonus award for the year
in the Eligible Employee’s employment terminates); provided,
however, that (i) the Company (or any surviving or acquiring
corporation) shall pay premiums for the Eligible Employee’s eligible dependents
only for coverage for which those eligible dependents who were enrolled
immediately prior to the Change in Control Termination and (ii) the
Company’s (or any surviving or acquiring corporation’s) obligation to pay such
premiums shall cease immediately upon the Eligible Employee’s eligibility for
comparable group health insurance provided by a new employer of the Eligible
Employee.  For purposes of COBRA, the
COBRA period will begin upon the effective date of the Change in Control
Termination.  No insurance premium
payments will be made by the Company (or any surviving or acquiring
corporation) following the effective date of the Eligible Employee’s coverage
by a health insurance plan of a subsequent employer.  The Eligible Employee shall immediately
notify the Plan Administrator upon obtaining employment pursuant to which he or
she is employed on the average of thirty (30) hours or more each week.


 


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Outplacement Assistance:  The Eligible Employee will be eligible to participate
in an outplacement assistance program to be selected by the Company (or any
surviving or acquiring corporation).


 


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