Exhibit
10.1


 


ALLOS THERAPEUTICS, INC.


EMPLOYMENT AGREEMENT


 


CHARLES MORRIS


 


THIS
EMPLOYMENT AGREEMENT
(the “Agreement”) is entered into effective
as of April 26, 2010 (the “Effective Date”),
by and between ALLOS THERAPEUTICS, INC., (the “Company”), and CHARLES
MORRIS  (“Executive”)
(collectively, the “Parties”).


 


WHEREAS,
the Company
wishes to employ Executive on the terms set forth herein; and


 


WHEREAS,  Executive
wishes to be so employed under the terms set forth herein.


 


NOW,
THEREFORE, in
consideration of the promises, mutual covenants, the above recitals, and the
agreements herein set forth, and for other good and valuable consideration, the
sufficiency of which is hereby acknowledged, the Parties agree to the following
terms and conditions of Executive’s employment:


 


1.                                      EMPLOYMENT. 
The Company hereby agrees to employ Executive as Executive
Vice President, Chief Medical Officer and Executive hereby accepts such employment upon the terms and
conditions set forth herein as of the date first written above. Executive shall
commence employment with the Company on April 26, 2010 (“Start Date”).


 


2.                                      AT-WILL EMPLOYMENT.  It is understood and
agreed by the Company and Executive that this Agreement does not contain any
promise or representation concerning the duration of Executive’s employment
with the Company. Executive specifically acknowledges that his employment with
the Company is at-will and may be terminated by either Executive or the Company
at any time, with or without cause and/or with or without notice.  The nature, terms or conditions of Executive’s
employment with the Company cannot be changed by any oral representation,
custom, habit or practice, or any other writing.  In addition, the fact that the rate of
salary, any bonuses, paid time off, other compensation, or vesting schedules
are stated in units of years or months does not alter the at-will nature of the
employment, and does not mean and should not be interpreted to mean that
Executive is guaranteed employment to the end of any period of time or for any
period of time. In the event of conflict between this
disclaimer and any other statement, oral or written, present or future,
concerning terms and conditions of employment, the at-will relationship
confirmed by this disclaimer shall control. 
This at-will status cannot be altered except in writing signed by
Executive and the Chairman of the Board of Directors.


 


3.                                      DUTIES. 
Executive shall render full-time services to the Company as the
Executive Vice President, Chief Medical Officer of the Company and shall have
such duties typically associated with such title.  Subject to the foregoing, Executive also
agrees to serve as an officer and/or director of the Company or any parent or
subsidiary of the Company, as specified by the Board, in each case without
additional compensation.  Executive shall
report directly and exclusively to the Chief Executive Officer of the
Company.  Subject to the terms and
conditions set forth in this Agreement, Executive shall devote his full
business time, attention, and efforts to the performance of his duties under
this Agreement and shall not engage in any other business or occupation during
his employment with the Company pursuant to this Agreement, including, without
limitation, any activity that (a) conflicts with the interests of the
Company or its


 

















 


subsidiaries, (b) interferes
with the proper and efficient performance of his duties for the Company, or (c) interferes
with the exercise of his judgment in the Company’s best interests.  Notwithstanding the foregoing, nothing herein
shall preclude Executive from (i) serving, with the prior written consent
of the Board, as a member of the board of directors or advisory boards (or
their equivalents in the case of a non-corporate entity) of non-competing
businesses and charitable organizations, (ii) engaging in charitable
activities and community affairs, and (iii) subject to the terms and
conditions set forth in the Confidentiality Agreement (as defined below),
managing his personal investments and affairs; provided, however, that the
activities set out in clauses (i), (ii) and (iii) shall be limited by
Executive so as not to materially interfere, individually or in the aggregate,
with the performance of his duties and responsibilities hereunder.


 


4.                                      POLICIES AND PROCEDURES.  Executive
agrees that he is subject to and will comply with the policies and procedures
of the Company, as such policies and procedures may be modified, added to or
eliminated from time to time at the sole discretion of the Company, except to
the extent any such policy or procedure specifically conflicts with the express
terms of this Agreement.  Executive
further agrees and acknowledges that any written or oral policies and
procedures of the Company do not constitute contracts between the Company and
Executive.


 


5.                                      COMPENSATION.  For all services rendered and to be rendered
hereunder, the Company agrees to pay to the Executive, and the Executive agrees
to accept an initial base salary at an annualized rate of $420,000 (“Base Salary”). Any such salary shall be payable in equal
biweekly installments and shall be subject to such deductions or withholdings
as the Company is required to make pursuant to law, or by further agreement
with the Executive.  Executive’s salary
shall be subject to annual review and adjustment by the Compensation Committee
of the Board of Directors.


 


6.                                      ANNUAL BONUS.  Executive will be eligible to participate in the
Company’s Corporate Bonus Plan, pursuant to which Executive will be eligible
for an annual bonus award to be determined in accordance with the terms of the
plan (“Annual  Bonus”).  For 2010,
Executive’s target bonus award under the Corporate Bonus Plan shall equal 50%
of Executive’s actual base salary earned in 2010, weighted 60% to the
achievement of the Company’s corporate objectives and 40% to the achievement of
individual objectives determined by the Compensation Committee of the Company’s
Board of Directors, in consultation with the Chief Executive Officer.  A copy of the Corporate Bonus Plan has been
provided to Executive.


 


7.                                      SIGNING
BONUS.  Within thirty (30) days
following Executive’s Start Date, Executive shall be paid a bonus of $100,000
less applicable employment tax withholdings and deductions (“Signing Bonus”). 
Provided that Executive remains employed by the Company and has
satisfied certain milestones to be determined by the Compensation Committee of
the Board of Directors within thirty (30) days of Executive’s Start Date, on
the first anniversary of the Start Date, Executive shall receive an additional
Signing Bonus of $50,000 less applicable employment tax withholdings and
deductions.  In the event that, prior to
the first anniversary of the Start Date, Executive terminates his employment
with the Company other than for Good Reason, Executive shall reimburse the Company
on such date of termination for a portion of the Signing Bonus in an amount in
cash equal to the product of (x) the number of days between such date of
termination and the first anniversary of the Start Date multiplied by (y) $273.97.


 


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8.                                      RELOCATION.  Subject to the submission of
properly documented receipts, the Company shall reimburse Executive up to a
maximum of $125,000 for the following relocation costs: (i) customary
closing costs incurred by Executive in connection with the sale of his current
residence in Garnet Valley, Pennsylvania, including brokerage commissions and
reasonable attorney’s fees, (ii) customary closing costs incurred by
Executive in connection with the purchase of a new residence in the Princeton,
New Jersey metropolitan area, (iii) customary and reasonable costs of
moving Executive and his family, including their personal effects, to their new
residence in New Jersey; and (iv) customary and reasonable commuting and
temporary living expenses for Executive and his family for up to six months
following his commencement of employment with the Company (collectively, the “Reimbursement Amount”). Also, to the extent
that the Reimbursement Amount is taxable as income to Executive, upon
substantiation of the amount of income tax imposed on the Reimbursement Amount,
the Company shall pay Executive an amount equal to such tax (the “First Iteration Tax Payment”), provided
that the Company shall not “gross-up” or otherwise pay Executive’s tax on the
First Iteration Tax Amount. In order to be
eligible for any relocation
reimbursement, Executive must relocate his residence and personal effects to
New Jersey within twenty-four months following his commencement of employment
with the Company. The Company makes no representations regarding the
proper tax treatment of Executive’s reimbursed relocation costs and Executive
is responsible for obtaining independent advice from his own personal tax
advisor.  In the event that, prior to the
first anniversary of the Executive’s relocation to New Jersey, Executive
terminates his employment with the Company other than for Good Reason,
Executive shall reimburse the Company on such date of termination for a portion
of the Reimbursement Amount actually paid to Executive in an amount in cash
equal to the product of (x) the number of days between such date of
termination and the first anniversary of the Executive’s relocation multiplied
by (y) 1/365th of the Reimbursement Amount.


 


9.                                      STOCK
OPTIONS.  Subject to the approval of
the Compensation Committee of the Board of Directors (which shall not be
unreasonably withheld), on or shortly following the Start Date, the Company
shall grant Executive a non qualified option to purchase 190,000 shares of the
Company’s Common Stock under the Company’s 2008 Equity Incentive Plan (the “2008 Plan”) at an exercise price equal to
the closing sale price of the Company’s Common Stock as reported on the NASDAQ
Global Market on the date of grant. The options will vest over a four (4) year
period, with 25% of such options vesting one (1) year after the date of
grant, and the remaining 75% of such options vesting in equal monthly
installments thereafter over the next three (3) years, subject to the
Executive’s continuous employment through such vesting dates. The options will
be subject to the terms and conditions of the 2008 Plan and the Company’s
standard form of stock option agreement thereunder, copies of which have
been provided to Executive.


 


10.                               RESTRICTED
STOCK UNITS.  Subject to the
approval of the Compensation Committee of the Board of Directors (which shall
not be unreasonably withheld), on or shortly following the Start Date, the
Company shall grant Executive 110,000 restricted stock units of the Company
(the “RSUs”) under the 2008 Plan.
The RSUs shall vest in four equal installments on each of the first four
anniversaries of the date of grant, subject to Executive’s continuous
employment through such vesting dates. The RSUs shall be subject to the terms
and conditions of the 2008 Plan and the Company’s standard form of
restricted stock unit grant notice and agreement thereunder, copies of which
have been provided to Executive.


 


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11.                               OTHER BENEFITS.  While employed by the Company as provided herein:


 


(a)                                  Executive and Employee Benefits. 
The Executive shall be eligible for all benefits to which other
similarly situated executive officers of the Company are eligible, on terms
comparable thereto, including, without limitation, participation in the 401(k) plan,
group insurance policies and plans, medical, health, vision, and disability
insurance policies and plans, and the like, which may be maintained by the
Company for the benefit of its executives. The Company reserves the right to delete,
alter and amend the benefits for which the Executive is eligible from time to
time at the Company’s discretion.


 


(b)                                  Out-of-Pocket Expense
Reimbursement.  The Executive shall receive, against timely
presentation of proper receipts and vouchers, reimbursement for direct and
reasonable out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder, according to the policies of the Company.


 


(c)                                  Personal Time Off. 
The Executive shall be eligible for the same number of holidays and sick
days as are generally allowed to executive officers of the Company and to five
weeks of vacation per year, administered in accordance with Company policies in
effect from time to time.


 


12.                               PROPRIETARY AND OTHER OBLIGATIONS. 
Executive acknowledges that signing and complying with the Company’s
standard form of Employee Confidentiality and Inventions Assignment Agreement (“Confidentiality Agreement”), in
substantially the form provided to Executive, is a condition of his employment
by the Company.  Executive further agrees
that all Company-related business procured by the Executive, and all
Company-related business opportunities and plans made known to Executive while
employed by the Company, are and shall remain the permanent and exclusive
property of the Company.


 


13.                               TERMINATION. 
Executive and the Company each acknowledge that either party has the
right to terminate Executive’s employment with the Company at any time for any
reason whatsoever, with or without cause or advance notice pursuant to the
following:


 


(a)                                  Termination by Death or
Disability.  Subject to applicable state or federal law,
in the event Executive shall die during the period of his employment hereunder
or becomes disabled, as evidenced by Executive’s inability to carry out his job
responsibilities for a continuous period of more than three months, Executive’s
employment and the Company’s obligation to make payments hereunder shall
terminate on the date of his death, or the date upon which, in the sole
determination of the Board of Directors, Executive has failed to carry out his
job responsibilities for three months, except that the Company shall pay
Executive’s estate any salary earned but unpaid prior to termination, all
accrued but unused vacation and any business expenses that were incurred but
not reimbursed as of the date of termination. 
Vesting of any unvested stock options and/or other stock awards shall
cease on the date of termination.


 


(b)                                  Resignation by Executive. 
In the event Executive terminates his employment with the Company (other
than for Good Reason (as defined below)), the Company’s obligation to make
payments hereunder shall cease upon such termination, except that the Company
shall pay Executive any salary earned but unpaid prior to termination, all
accrued but unused vacation and any business expenses that were incurred but
not reimbursed as of the date 


 


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of termination.  Vesting of any unvested stock options and/or
other stock awards shall cease on the date of termination.


 


(c)                                  Termination for Cause. 
In the event the Executive is terminated by the Company for Cause (as
defined below), the Company’s obligation to make payments hereunder shall cease
upon the date of receipt by Executive of written notice of such termination
(the “date of termination” for purposes of
this Section 13(c)), except that the Company shall pay Executive any
salary earned but unpaid prior to termination, all accrued but unused vacation
and any business expenses that were incurred but not reimbursed as of the date
of termination.  Vesting of any unvested
stock options and/or other stock awards shall cease on the date of termination.


 


(d)                                  Termination by the Company
without Cause or Resignation for Good Reason (Other Than Change in Control). 
The Company shall have the right to terminate Executive’s employment
with the Company at any time without Cause. 
In the event Executive is terminated by the Company without Cause or
Executive resigns for Good Reason (other than in connection with a Change in
Control (as defined below)), and upon the execution of a full general release
by Executive (“Release”) within 60 days following
the date of termination, in the form attached hereto as Exhibit A, releasing all claims known
or unknown that Executive may have against the Company as of the date Executive
signs such release, and upon the written acknowledgment of his continuing
obligations under the Confidentiality Agreement, Executive shall be entitled to
receive the following severance benefits: (i) continuation of Executive’s
base salary, then in effect, for a period of twelve (12) months following the
date of termination, paid on the same basis and at the same time as previously
paid or as otherwise required under Section 16 of
this Agreement; (ii) payment of any accrued but unused vacation
and sick leave; and (iii) the Company shall pay the premiums (both
employer and employee’s portion) of Executive’s group health insurance COBRA
continuation coverage, including coverage for Executive’s eligible dependents,
for a maximum period of twelve (12) months following the date of termination; provided, however, that (a) the Company shall pay
premiums for Executive’s eligible dependents only for coverage for which those
eligible dependents were enrolled immediately prior to the termination without
Cause or resignation for Good Reason and (b) the Company’s obligation to
pay such premiums shall cease immediately upon Executive’s eligibility for
comparable group health insurance provided by a new employer of Executive.  Vesting of any unvested stock options and/or
other stock awards shall cease on the date of termination.


 


(e)                                  Change in Control Severance
Benefits.  In the event that the Company (or any
surviving or acquiring corporation) terminates Executive’s employment without
Cause or Executive resigns for Good Reason within one (1) month prior to
or twelve (12) months following the effective date of a Change in Control (a “Change in Control Termination”), and upon
the execution of a Release, Executive shall be entitled to receive the
following Change in Control severance benefits: (i) a lump-sum cash
payment in an amount equal to (A) 1.5 times Executive’s annual base salary
then in effect, plus (B) 1.5 times the greater of (1) Executive’s
annualized target bonus award for the year in which Executive’s employment
terminates or (2) the Annual Bonus amount paid to Executive in the
immediately preceding year; (ii) payment of any accrued but unused
vacation and sick leave; (iii) payment of Executive’s target bonus award
for the year in which Executive’s employment terminates, prorated through the
date of the Change in Control Termination; (iv) the Company (or any
surviving or acquiring corporation) shall pay the premiums (both employer and
employee’s portion) of Executive’s group health insurance COBRA continuation
coverage, including coverage for Executive’s eligible


 


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dependents, for a maximum
period of eighteen (18) months following a Change in Control Termination; and (v) the
Company (or any surviving or acquiring corporation) shall pay the costs of
outplacement assistance services from an outplacement agency selected by
Executive for a period of nine (9) months following a Change in Control
Termination, up to maximum of $11,250 in aggregate; provided,
however, that (a) the Company (or any surviving or acquiring
corporation) shall pay premiums for Executive’s eligible dependents only for
coverage for which those eligible dependents were enrolled immediately prior to
the Change in Control Termination and (b) the Company’s (or any surviving
or acquiring corporation’s) obligation to pay such premiums shall cease
immediately upon Executive’s eligibility for comparable group health insurance
provided by a new employer of Executive. 
Executive agrees that the Company’s (or any surviving or acquiring
corporation) payment of health insurance premiums will satisfy its obligations
under COBRA for the period provided.


 


In addition, notwithstanding anything contained in
Executive’s stock option and/or other stock award agreements to the contrary,
in the event the Company (or any surviving or acquiring corporation) terminates
Executive’s employment without Cause or Executive resigns for Good Reason
within one (1) month prior to or twelve (12) months following the
effective date of a Change in Control, and any surviving corporation or
acquiring corporation assumes Executive’s stock options and/or other stock
awards, as applicable, or substitutes similar stock options or stock awards for
Executive’s stock options and/or other stock awards, as applicable, in
accordance with the terms of the Company’s equity incentive plans, then (i) the
vesting of all of Executive’s stock options and/or other stock awards (or any
substitute stock options or stock awards), as applicable, shall be accelerated
in full and (ii) the term and the period during which Executive’s stock
options may be exercised shall be extended to twelve (12) months after the date
of Executive’s termination of employment; provided,
that, in no event shall such options be exercisable after the
expiration date of such options as set forth in the stock option grant notice
and/or agreement evidencing such options.


 


(f)                                    Legal Costs. 
Following a Change in Control, in the event Executive institutes and
prevails in litigation regarding the validity or enforceability of, or
liability under, any material provision of this Section 13 or any
guarantee of performance thereof, the Executive shall be entitled to payment of
his reasonable attorneys fees and expenses by the Company with respect to those
claims in which Executive has prevailed.


 


14.                               DEFINITIONS.


 


(a)                                  Cause. 
As used in this Agreement, “Cause”
shall mean the occurrence of one or more of the following: (i) Executive’s
commission of an act that constitutes a felony or a crime involving moral
turpitude or dishonesty; (ii) Executive’s participation in a fraud or act
of dishonesty against the Company; (iii) Executive’s intentional and
material damage to the Company’s property; (iv) material breach of
Executive’s employment agreement, the Company’s written policies, or the
Confidentiality Agreement that is not remedied by Executive within fourteen
(14) days of written notice of such breach from the Board of Directors; or (v) conduct
by Executive which demonstrates Executive’s gross unfitness to serve the
Company as Executive Vice President, Chief Medical Officer, as determined in
the sole discretion of the Board of Directors. 
Executive’s physical or mental disability or death shall not constitute
cause hereunder.


 


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(b)                                  Good Reason.  As used in this Agreement, “Good Reason” shall mean any one of the following events which
occurs without Executive’s consent on or after the commencement of Executive’s
employment provided that Executive has first provided written notice to any
member of the Board (or the surviving corporation, as applicable) of the
occurrence of such event(s) within 90 days of the first such occurrence
and the Company (or surviving corporation) has not cured such event(s) within
30 days after Executive’s written notice is received by such member of the
Board (or by the surviving corporation): 
(i) a reduction of Executive’s then existing annual salary base or
annual bonus target by more than ten percent (10%), unless the Executive
accepts such reduction or such reduction is done in conjunction with similar
reductions for similarly situated employees of the Company (it being understood
that, solely for purposes of this paragraph 14(b), such a reduction in the
annual bonus target not accepted by Executive is considered a material breach
of this Agreement); (ii) any request by the Company (or any surviving or
acquiring corporation) that the Executive relocate to a new principal base of
operations that is more than thirty-five (35) miles from his then-principal
base of operations, unless Executive accepts such relocation opportunity; or (iii) for
purposes of Section 13(e) only, if, following a Change in Control,
Executive’s benefits and responsibilities are materially reduced, or Executive’s
base compensation or annual bonus target are reduced by more than 10%, in each
case, by comparison to the benefits, responsibilities, base compensation or
annual bonus target in effect immediately prior to such reduction (it being
understood that, solely for purposes of this paragraph 14(b), the
aforementioned reductions in the annual bonus target or benefits are considered
a material breach of this Agreement).


 


(c)                                  Change in Control.  As used in this Agreement, a “Change in Control” is defined as: (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 50% of the Company’s voting power is
transferred.


 


15.                               TERMINATION OF COMPANY’S
OBLIGATIONS.  Notwithstanding any provisions in this
Agreement to the contrary, the Company’s obligations, and Executive’s rights
pursuant to Sections 13(d) and 13(e) herein, regarding salary
continuation and the payment of COBRA premiums, shall cease and be rendered a
nullity immediately should Executive fail to comply with the provisions of the
Confidentiality Agreement.


 


16.                               CODE SECTION 409A COMPLIANCE.  To the extent
any payments or benefits pursuant to Section 13 above (a) are paid
from the date of termination of Executive’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


 


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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, (c) represent
the reimbursement or payment of costs for outplacement services, such payments
are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of
the Treasury Regulations and to qualify for the exception from deferred
compensation pursuant to Section 1.409A-1(b)(9)(v)(A); and (d) are in
excess of the amounts specified in clauses (a), (b) and (c) 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 Internal Revenue Code of 1986, as amended (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 Executive’s
separation from service if Executive 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 six 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 Executive 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 this Agreement (subject
to applicable tax withholdings and deductions).


 


17.                               INDEMNIFICATION.  On
the Start Date, the Company and Executive shall enter into the Company’s
standard form of indemnification agreement for executive officers, in
substantially the form provided to Executive.


 


18.                               PARACHUTE TAXES.


 


(a)                                  The following terms shall have the
meanings set forth below for purposes of this Section 18:


 


(i)                                    “Accounting Firm”
means a certified public accounting firm chosen by the Company.


 


(ii)                                “After-Tax”
means after taking into account all applicable Taxes and Excise Tax.


 


(iii)                            “Excise Tax” means
the excise tax imposed by Section 4999 of the Code, together with any
interest or penalties imposed with respect to such excise tax.


 


(iv)                               “Payment” means
any payment, distribution or benefit in the nature of compensation (within the
meaning of Section 280G(b)(2) of the Code) to or for the benefit of
Executive, whether paid or payable pursuant to this Agreement or otherwise.


 


(v)                                   “Safe Harbor Amount”
means 2.99 times Executive’s “base amount,” within the meaning of Section 280G(b)(3) of
the Code.


 


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(vi)                               “Taxes” means
all federal, state, local and foreign income, excise, social security and other
taxes, other than the Excise Tax, and any associated interest and penalties.


 


(b)                                  If any Payment due Executive is subject
to the Excise Tax, then such Payment shall be adjusted, if necessary, to equal
the greater of (x) the Safe Harbor Amount or (y) the Payment,
whichever results in such Executive’s receipt, After-Tax, of the greatest
amount of the Payment. The reduction of Executive’s Payments pursuant to this Section 18,
if applicable, shall be made by first reducing the acceleration of Executive’s
stock option vesting (if any), and then by reducing the payments under Section 13(e)(v),
(iv), (ii), (iii) and (i), in that order, unless an alternative method of
reduction is elected by Executive, subject to approval by the Company, and in
any event shall be made in such a manner as to maximize the economic present
value of all Payments actually made to Executive, determined by the Accounting
Firm as of the date of the Change in Control for purposes of Section 280G
of the Code using the discount rate required by Section 280G(d)(4) of
the Code.


 


(c)                                  All determinations required to be made under this Section 18,
including whether and in what manner any Payments are to be reduced pursuant to
the second sentence of Section 18(b), and the assumptions to be utilized
in arriving at such determinations, shall be made by the Accounting Firm, and
shall be binding upon the Company and Executive, except to the extent the
Internal Revenue Service or a court of competent jurisdiction makes an
inconsistent final and binding determination. The Accounting Firm shall provide
detailed supporting calculations both to the Company and Executive within
fifteen (15) business days after receiving notice from Executive that there has
been a Payment or such earlier time as may be requested by the Company. All
fees and expenses of the Accounting Firm shall be borne solely by the Company.


 


19.                               MISCELLANEOUS.


 


(a)                                  Taxes.  Except as specifically set
forth herein, Executive agrees to be responsible for the payment of any taxes
due on any and all compensation, stock options and/or other stock awards, or
other benefits provided by the Company pursuant to this Agreement. 
Executive acknowledges and represents that the Company has not provided
any tax advice to him in connection with this Agreement and that he has been
advised by the Company to seek tax advice from his own tax advisors regarding
this Agreement and payments that may be made to him pursuant to this
Agreement, including specifically, the application of the provisions of Section 409A
of the Code to such payments.


 


(b)                                  Modification/Waiver.  This Agreement may not be amended, modified,
superseded, canceled, renewed or expanded, or any terms or covenants hereof
waived, except by a writing executed by each of the parties hereto or, in the
case of a waiver, by the party waiving compliance.  Failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect his or
its right at a later time to enforce the same. 
No waiver by a party of a breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any
agreement contained in the Agreement.


 


(c)                                  Costs of Enforcement.  Subject to Section 13(f), if
any contest or dispute shall arise under this Agreement, each party hereto
shall bear its own legal fees and expenses.


 


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(d)                                  Severability. 
Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provisions had never been contained herein.


 


(e)                                  Successors and Assigns. 
This Agreement is intended to bind and inure to the benefit of and be
enforceable by Executive and the Company, and their respective successors,
assigns, heirs, executors and administrators, except that Executive may not
assign any of his duties hereunder and he may not assign any of his rights
hereunder without the written consent of the Company, which shall not be
withheld unreasonably.


 


(f)                                    Notices.  All notices given hereunder shall be given by
certified mail, addressed, or delivered by hand, to the other party at his or
its address as set forth herein, or at any other address hereafter furnished by
notice given in like manner.  Executive
promptly shall notify Company of any change in Executive’s address.  Each notice shall be dated the date of its
mailing or delivery and shall be deemed given, delivered or completed on such
date.


 


(g)                                 Governing Law; Personal
Jurisdiction and Venue.  This Agreement and all disputes relating
to this Agreement shall be governed in all respects by the laws of the State of
Colorado as such laws are applied to agreements between Colorado residents
entered into and performed entirely in Colorado.  The Parties acknowledge that this Agreement
constitutes the minimum contacts to establish personal jurisdiction in Colorado
and agree to a Colorado court’s exercise of personal jurisdiction.  The Parties further agree that any disputes
relating to this Agreement shall be brought in courts located in the State of
Colorado.


 


(h)                                 Entire Agreement.  This Agreement, together with the other agreements and
exhibits specifically referenced herein, including the Company’s Corporate
Bonus Plan, the 2008 Plan and the Confidentiality Agreement, set forth the
entire agreement and understanding of the parties hereto with regard to the
employment of the Executive by the Company and supersede any and all prior agreements,
arrangements and understandings, written or oral, pertaining to the subject
matter hereof.  No representation,
promise or inducement relating to the subject matter hereof has been made to a
party that is not embodied in these Agreements, and no party shall be bound by
or liable for any alleged representation, promise or inducement not so set
forth herein.


 


(i)                                    Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.  The execution of this Agreement may be by
actual or facsimile signature.


 


[Remainder of Page Intentionally
Left Blank]


 


10

















 


IN WITNESS WHEREOF, the parties have each duly executed this
EMPLOYMENT AGREEMENT effective as of
the day and year first above written.


 


	
   

  	
  ALLOS THERAPEUTICS, INC.

  
	
   

  	
   

  
	
   

  	
  /s/ Paul L. Berns

  
	
   

  	
  By:

  	
  Paul L. Berns

  
	
   

  	
  Its:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  11080 CirclePoint Road

  
	
   

  	
   

  	
  Westminster, CO 80020

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
  /s/ Charles Morris

  
	
   

  	
  By:

  	
  Charles Morris

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
  16 William Beaser Drive
  

  
	
   

  	
   

  	
  Garnet Valley, PA

  
	
   

  	
   

  	
  19061

  
					



 


11

















 


EXHIBIT A TO EMPLOYMENT AGREEMENT


 


RELEASE AGREEMENT


 


I
understand that my position with Allos Therapeutics, Inc. (the “Company”) terminated effective                       ,
           (the “Separation Date”). 
The Company has agreed that if I choose to sign this Release, the
Company will pay me certain severance or consulting benefits pursuant to the
terms of the Employment Agreement (the “Agreement”)
between myself and the Company, and any agreements incorporated therein by
reference.  I understand that I am not
entitled to such benefits unless I sign this Release and it becomes fully
effective.  I understand that, regardless
of whether I sign this Release, the Company will pay me all of my accrued
salary and vacation through the Separation Date, to which I am entitled by law.


 


In
consideration for the severance benefits I am receiving under the Agreement, I
hereby release the Company and its officers, directors, agents, attorneys,
employees, shareholders, parents, subsidiaries, and affiliates from any and all
claims, liabilities, demands, causes of action, attorneys’ fees, damages, or
obligations of every kind and nature, whether they are now known or unknown,
arising at any time prior to the date I sign this Release.  This general release includes, but is not
limited to:  all federal and state
statutory and common law claims, claims related to my employment or the
termination of my employment or related to breach of contract, tort, wrongful
termination, discrimination, wages or benefits, or claims for any form of
equity or compensation.  Notwithstanding
the release in the preceding sentence, I am not releasing any right of
indemnification I may have for any liabilities arising from my actions within
the course and scope of my employment with the Company.


 


If
I am forty (40) years of age or older as of the Separation Date, I acknowledge
that I am knowingly and voluntarily waiving and releasing any rights I may have
under the federal Age Discrimination in Employment Act of 1967, as amended (“ADEA”).  I also
acknowledge that the consideration given for the waiver in the above paragraph
is in addition to anything of value to which I was already entitled.  I have been advised by this writing, as
required by the ADEA that:  (a) my
waiver and release do not apply to any claims that may arise after my signing
of this Release; (b) I should consult with an attorney prior to executing
this Release; (c) I have twenty-one (21) or forty-five (45) days, as
applicable, within which to consider this Release (although I may choose to
voluntarily execute this Release earlier); (d) I have seven (7) days
following the execution of this release to revoke the Release; and (e) this
Release will not be effective until the eighth day after this Release has been
signed both by me and by the Company (“Effective Date”).


 


Agreed:


 


	
  ALLOS THERAPEUTICS INC.

  	
   

  	
  CHARLES MORRIS

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  



 


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