Exhibit 10.2


 


ALLOS THERAPEUTICS, INC.


2008 EQUITY INCENTIVE PLAN


 


RESTRICTED STOCK UNIT GRANT NOTICE


 


Allos
Therapeutics, Inc. (the “Company”), pursuant to Section 6(b) of the
Company’s 2008 Equity Incentive Plan (the “Plan”), hereby awards to Participant a
Restricted Stock Unit Award covering the number of restricted stock units (the “RSUs”) set forth below (the “Award”).  This Award shall be evidenced by a Restricted
Stock Unit Award Agreement (the “Award Agreement”).  This Award is subject to all of the terms and
conditions as set forth herein and in the applicable Award Agreement and the
Plan, both of which have been provided herewith and are incorporated herein in
their entirety.  Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Plan and the
Award Agreement.


 


Participant: 


 


Date of Grant: 


 


Vesting Commencement Date:  


 


Number of RSUs: 


 


Consideration for Common Stock:  Participant’s services to the Company


 


Vesting
Schedule:  The RSUs shall vest in a series of three (3) successive
equal annual installments over the three (3)-year period measured from the
Vesting Commencement Date, subject to Participant’s Continuous Service through
each such date.


 


Withholding Tax Election:  At the time the Award is accepted, Participant
may affirmatively elect in a manner that is satisfactory to the Company, to
tender to the Company a cash payment equal to the Withholding Taxes (as defined
in Section 10 of the Award Agreement), so that the Company may make a cash
payment equal to the amount tendered by Participant directly to the appropriate
taxing authorities.  Participant shall
tender any such cash payment to the Company on
or before the time Participant receives a distribution of Common Stock pursuant
to the Award.  If no such cash
election is made, then Participant will be deemed to have made the following
election at the time the Award is accepted:


 


Sell to Cover: 
Participant hereby elects to sell shares subject to the Award in an
amount determined in accordance with Section 10 of the Award Agreement and
to allow the Agent to remit the cash proceeds of such sale to the Company.  Furthermore, Participant directs the Company
to make a cash payment equal to the Withholding Taxes from the cash proceeds of
such sale directly to the appropriate taxing authorities.  Participant has carefully
reviewed Section 10 of the Award Agreement and Participant hereby
represents and warrants that on the date hereof he or she is not aware of any
material, nonpublic information with respect to the Company or any securities
of the Company, is not subject to any legal, regulatory or contractual
restriction that would prevent the Agent from conducting sales, does not have,
and will not attempt to exercise, authority, influence or control over any
sales of Common Stock effected by the Agent pursuant to the Award Agreement,
and is entering into the Award Agreement and this election to “sell to cover”
in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1
(regarding trading of the Company’s securities on the basis of material
nonpublic information) under the Exchange Act. 
It is 


 

















 


Participant’s intent that this election to “sell to cover” comply with
the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act
and be interpreted to comply with the requirements of Rule 10b5-1(c) under
the Exchange Act.


 


Delivery
Schedule:  Delivery of
one share of Common Stock for each RSU that vests shall occur on the applicable
vesting date, provided that delivery may be delayed as provided in Section 3
of the Award Agreement.


 


Additional
Terms/Acknowledgements:  By
accepting this Award, Participant acknowledges receipt of, and understands and
agrees to, this Restricted Stock Unit Grant Notice, the Award Agreement and the
Plan.  Participant further acknowledges
that as of the Date of Grant, this Restricted Stock Unit Grant Notice, the
Award Agreement and the Plan set forth the entire understanding between
Participant and the Company regarding the award of the RSUs and the underlying shares
of Common Stock pursuant to the Award specified above and supersede all prior
oral and written agreements on that subject with the exception of (i) Stock
Awards previously granted and delivered to Participant under the Plan, and
(ii) any provision in an employment agreement between Participant and the
Company governing this Award.


 


RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Pursuant to your Restricted Stock Unit Grant Notice (“Grant Notice”) and
this Restricted Stock Unit Award Agreement (“Agreement”), Allos Therapeutics, Inc.
(the “Company”)
has awarded you a Restricted Stock Unit Award pursuant to Section 6(b) of
the Company’s 2008 Equity Incentive Plan (the “Plan”) for the number of restricted
stock units (“RSUs”)
as indicated in the Grant Notice (collectively, the “Award”).  Defined terms not explicitly defined in this
Agreement but defined in the Plan shall have the same definitions as in the
Plan.  Subject to adjustment and the
terms and conditions as provided herein and in the Plan, each RSU shall represent
the right to receive one (1) share of Common Stock.


 


The details of your Award, in addition to those
set forth in the Grant Notice, are as follows.


 


1.                                      NUMBER OF RSUS AND SHARES OF COMMON STOCK.


 


(a)                                  The number of RSUs subject to your Award and the
number of shares of Common Stock deliverable with respect to such RSUs may be
adjusted from time to time for Capitalization Adjustments as described in Section 9(a) of
the Plan.  You shall receive no
benefit or adjustment to your Award with respect to any cash dividend or other
distribution that does not result from a Capitalization Adjustment as described
in Section 9(a) of the Plan; provided, however,
that this sentence shall not apply with respect to any shares of Common Stock
that are delivered to you in connection with your Award after such shares have
been delivered to you.


 


(b)                                  Any additional RSUs, shares of Common Stock, cash or
other property that becomes subject to the Award pursuant to this Section 1
shall be subject, in a manner determined by the Board, to the same forfeiture
restrictions, restrictions on transferability, and time and manner of delivery
as applicable to the other RSUs and
Common Stock covered by your Award.


 


(c)                                  Notwithstanding
the provisions of this Section 1, no fractional RSUs  or rights for fractional shares of Common
Stock shall be created pursuant to this Section 1.  The Board shall, in its discretion, determine
an equivalent benefit for any fractional RSUs
or fractional shares that might be created by the adjustments referred
to in this Section 1.


 

















 


2.                                      VESTING.  The RSUs shall vest, if at
all, as provided in the Vesting Schedule set forth in your Grant Notice,
provided that vesting shall cease upon the termination of your Continuous
Service.


 


3.                                      DELIVERY OF SHARES OF COMMON STOCK.


 


(a)                                  Subject to the
provisions of this Award Agreement and the Plan, in the event one or more RSUs
vests, the Company shall deliver to you one (1) share of Common Stock for
each RSU that vests on the applicable vesting date.  However, if a scheduled delivery date falls
on a date that is not a business day, such delivery date shall instead fall on
the next following business day.


 


(b)                                  Notwithstanding
the foregoing, in the event that you are subject to the Company’s Insider Trading Policy and related Addendum to
Insider Trading Policy (or any successor policy) and any shares
covered by your Award are scheduled to be delivered on a day (the “Original Delivery Date”)
that does not occur during an open “window period” applicable to you, as
determined by the Company in accordance with such policy, and the Company
elects (i) not to satisfy its tax withholding obligations by withholding
shares of Common Stock from your distribution, and (ii) not to permit you
to enter into a “sell to cover”
commitment with a broker-dealer (including but not limited to a commitment
under a previously established Company-approved 10b5-1 plan or a “sell to cover” commitment pursuant to Section 10
below), then such shares shall not be delivered on such Original
Delivery Date and shall instead be delivered on the first business day of the
next occurring open “window period” but in no event later than the later of December 31st
of the calendar year of the Original Delivery Date, or the fifteenth (15th) day
of the third calendar month following the Original Delivery Date.  The form of such delivery (e.g., a stock certificate or electronic
entry evidencing such shares) shall be determined by the Company.


 


4.                                      PAYMENT BY YOU.  This Award was granted in consideration of
your services for the Company.  Subject
to Section 10 below, except as otherwise provided in the Grant Notice, you
will not be required to make any payment to the Company (other than your past
and future services for the Company) with respect to your receipt of the Award,
vesting of the RSUs, or the delivery of the shares of Common Stock underlying
the RSUs.


 


5.                                      SECURITIES LAW COMPLIANCE.  You may not be issued any Common Stock under
your Award unless either (i) the shares of Common Stock are then
registered under the Securities Act, or (ii) the Company has determined
that such issuance would be exempt from the registration requirements of the
Securities Act.  Your Award must also
comply with other applicable laws and regulations governing the Award, and you
shall not receive such Common Stock if the Company determines that such receipt
would not be in material compliance with such laws and regulations.


 


6.                                      RESTRICTIVE
LEGENDS.  The Common
Stock issued under your Award shall be endorsed with appropriate legends, if
any, determined by the Company.


 


7.                                      TRANSFER
RESTRICTIONS.  Prior to the
time that shares of Common Stock have been delivered to you, you may not
transfer, pledge, sell or otherwise dispose of the shares in respect of your
Award.  For example, you may not use
shares that may be issued in respect of your RSUs as security for a loan, nor may you transfer, pledge, sell or
otherwise dispose of such shares.  This
restriction on transfer will lapse upon delivery to you of shares in respect of
your vested RSUs.  Your Award is not transferable, except by
will or by the laws of descent and distribution.  Notwithstanding the foregoing, by delivering
written notice to the Company, in a form satisfactory to the Company, you may
designate a third party who, in the event of your death, shall thereafter be
entitled to receive any distribution of Common Stock to which you were entitled
at the time of your death pursuant to this Agreement.


 

















 


8.                                      AWARD NOT A SERVICE CONTRACT.  Your Award is not an employment or service
contract, and nothing in your Award shall be deemed to create in any way
whatsoever any obligation on your part to continue in the service of the
Company or any Affiliate, or on the part of the Company or any Affiliate to
continue such service.  In addition,
nothing in your Award shall obligate the Company or any Affiliate, their
respective stockholders, boards of directors or employees to continue any
relationship that you might have as an Employee or Consultant of the Company or
any Affiliate.


 


9.                                      UNSECURED OBLIGATION.  Your Award is unfunded, and even as to any
RSUs that vest, you shall be considered an unsecured creditor of the Company
with respect to the Company’s obligation, if any, to issue Common Stock
pursuant to this Agreement.  You shall
not have voting or any other rights as a stockholder of the Company with
respect to the Common Stock acquired pursuant to this Agreement until such
Common Stock is issued to you pursuant to Section 3 of this
Agreement.  Upon such issuance, you will
obtain full voting and other rights as a stockholder of the Company with
respect to the Common Stock so issued. 
Nothing contained in this Agreement, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind or a
fiduciary relationship between you and the Company or any other person.


 


10.                               WITHHOLDING OBLIGATIONS.


 


(a)                                  On or before the time you receive a distribution of Common Stock pursuant
to your Award, or at any time thereafter as requested by the Company, you
hereby authorize any required withholding and/or otherwise agree to make
adequate provision in cash for any sums required to satisfy the federal, state,
local and foreign tax withholding obligations of the Company or any Affiliate
which arise in connection with your Award (the “Withholding
Taxes”).  Additionally,
the Company may, in its sole discretion, satisfy all or any portion of the
Withholding Taxes obligation relating to your Award by any of the following
means or by a combination of such means: (i) withholding from any compensation
otherwise payable to you by the Company; (ii) causing or permitting you to
tender a cash payment; (iii) permitting you to elect to
enter into a “sell to cover”
commitment with Merrill Lynch, or such other registered broker-dealer that is a
member of the Financial Industry Regulatory Authority as the Company may select
as your agent (the “Agent”)  whereby
you irrevocably elect to sell the portion of the shares to be delivered under
the Award necessary so as to satisfy the Withholding Taxes and whereby the
Agent irrevocably commits to forward the proceeds necessary to satisfy the
Withholding Taxes directly to the Company and/or its Affiliates; or (iv) withholding shares of Common Stock
from the shares of Common Stock issued or otherwise issuable to you in connection
with the Award with a Fair Market Value (measured as of the date shares of
Common Stock are delivered pursuant to Section 3) equal to the amount of
such Withholding Taxes; provided, however, that the number of such shares of Common Stock
withheld to satisfy Withholding Taxes shall not exceed the amount necessary to
satisfy the Company’s required tax withholding obligations using the minimum
statutory withholding rates for federal, state, local and foreign tax purposes,
including payroll taxes, that are applicable to supplemental taxable income.


 


(b)                                  In the event that the Company permits you to enter into a “sell to cover”
commitment and you elect to do so, you hereby acknowledge and agree to the
following:


 


(i)                                    You hereby
appoint the Agent as your agent, and authorize the Agent, to:


 


(1)                                 Sell on the
open market at the then prevailing market price(s), on your behalf, as soon as
practicable on or after each date on which RSUs vest, the number (rounded up to
the next whole number) of the shares of Common Stock to be delivered to you in
connection with the vesting of those RSUs sufficient to generate proceeds to
cover (A) the Withholding Taxes that you are required to pay pursuant to Section 8(g) of
the Plan and this Section 10 as a result of the RSUs vesting on 


 

















 


such date and (B) all applicable fees and
commissions due to, or required to be collected by, the Agent with respect
thereto; and


 


(2)                                 Remit any
remaining funds to you.


 


(ii)                                You hereby
authorize the Company and the Agent to cooperate and communicate with one
another to determine the number of shares of Common Stock that must be sold
pursuant to Section 10(b)(i)(1) above to satisfy your obligations
thereunder.


 


(iii)                            You understand
that the Agent may effect sales as provided in Section 10(b)(i)(1) above
in one or more sales and that the average price for executions resulting from
bunched orders will be assigned to your account.  In addition, you acknowledge that it may not
be possible to sell shares of Common Stock as provided by in Section 10(b)(i)(1) above
due to (i) a legal or contractual restriction applicable to you or the
Agent, (ii) a market disruption, or (iii) rules governing order
execution priority on the national exchange where the Common Stock may be
traded.  In the event of the Agent’s
inability to sell shares of Common Stock, you will continue to be responsible
for the timely payment to the Company of all federal, state, local and foreign
taxes that are required by applicable laws and regulations to be withheld,
including but not limited to those amounts specified in Section 10(b)(i)(1) above.


 


(iv)                               You acknowledge
that regardless of any other term or condition of this Section 10(b), the
Agent will not be liable to you for (A) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (B) any failure to perform or for any delay in performance that
results from a cause or circumstance that is beyond its reasonable control.


 


(v)                                   You hereby
agree to execute and deliver to the Agent any other agreements or documents as
the Agent reasonably deems necessary or appropriate to carry out the purposes
and intent of this Section 10(b). 
The Agent is a third-party beneficiary of this Section 10(b).


 


(vi)                               This Section 10(b) shall
terminate not later than the date on which all Withholding Taxes arising in
connection with the vesting of your Award have been satisfied.


 


(c)                                  Unless the tax withholding obligations of the Company and/or any
Affiliate are satisfied, the Company shall have no obligation to deliver to you
any Common Stock.


 


(d)                                  In the event the Company’s obligation to withhold arises prior to the
delivery to you of Common Stock or it is determined after the delivery of
Common Stock to you that the amount of the Withholding Taxes was greater than
the amount withheld by the Company, you agree to indemnify and hold the Company
harmless from any failure by the Company to withhold the proper amount.


 


11.                               PARACHUTE PAYMENTS.


 


(a)                                  Except to the extent otherwise set forth in any written agreement between
the Company and you, if any payment or benefit you would receive in connection
with a Change in Control from the Company or otherwise (“Payment”) would (i) constitute
a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but
for this sentence, be subject to the excise tax imposed by Section 4999 of
the Code (the “Excise
Tax”), then the Company shall cause to be determined, before any
amounts of the Payment are paid to you, which of the following two alternative
forms of payment would maximize your after-tax proceeds: (i) payment in
full of the entire amount of the Payment (a “Full Payment”), or (ii) payment of
only a part of the Payment so that you receive the largest payment possible
without the imposition of the Excise Tax (a “Reduced Payment”), whichever amount
results in your 


 

















 


receipt, on an after-tax
basis, of the greater amount of the Payment notwithstanding that all or some
portion of the Payment may be subject to the Excise Tax.  For purposes of determining whether to make a
Full Payment or a Reduced Payment, the Company shall cause to be taken into
account all applicable federal, state and local income and employment taxes and
the Excise Tax (all computed at the highest applicable marginal rate, net of
the maximum reduction in federal income taxes which could be obtained from a
deduction of such state and local taxes).


 


(b)                                  If a Reduced Payment is made, (i) the Payment shall be paid only to
the extent permitted under the Reduced Payment alternative, and you shall have
no rights to any additional payments and/or benefits constituting the Payment,
and (ii) reduction in payments and/or benefits shall occur in the
following order unless you elect in writing a different order (provided,
however, that such election shall be subject to Company approval if made on or
after the date on which the event that triggers the Payment occurs): (1) reduction
of cash payments; (2) cancellation of accelerated vesting of equity awards
other than stock options; (3) cancellation of accelerated vesting of stock
options; and (4) reduction of other benefits paid to you.  In the event that acceleration of
compensation from your equity awards is to be reduced, such acceleration of
vesting shall be canceled in the reverse order of the date of grant (i.e.,
earliest granted Stock Award cancelled last) unless you elect in writing a
different order for cancellation.


 


(c)                                  The accounting firm engaged by the Company for general tax purposes as of
the day prior to the effective date of the Change in Control shall perform the
foregoing calculations.  If the
accounting firm so engaged by the Company is serving as accountant or auditor
for the individual, entity or group effecting the Change in Control, the
Company shall appoint a nationally recognized accounting firm to make the
determinations required hereunder.  The
Company shall bear all expenses with respect to the determinations by such
accounting firm required to be made hereunder.


 


(d)                                  The accounting firm engaged to make the determinations hereunder shall
provide its calculations, together with detailed supporting documentation, to
you and the Company within fifteen (15) calendar days after the date on which
your right to a Payment is triggered (if requested at that time by you or the
Company) or such other time as requested by you or the Company.  If the accounting firm determines that no
Excise Tax is payable with respect to a Payment, either before or after the
application of the Reduced Amount, it shall furnish you and the Company with an
opinion reasonably acceptable to you that no Excise Tax will be imposed with
respect to such Payment.  Any good faith
determinations of the accounting firm made hereunder shall be final, binding
and conclusive upon you and the Company.


 


12.                               NOTICES.  Any notices required to be given or delivered
to the Company under the terms of this Award shall be in writing and addressed
to the Company at its principal corporate offices.  Any notice required to be given or delivered
to you shall be in writing and addressed to your address as on file with the
Company at the time notice is given.  All
notices shall be deemed effective upon personal delivery or upon deposit in the
U.S. mail, postage prepaid and properly addressed to the party to be notified.


 


13.                               HEADINGS.  The headings of the Sections in this
Agreement are inserted for convenience only and shall not be deemed to
constitute a part of this Agreement or to affect the meaning of this Agreement.


 


14.                               AMENDMENT.  This Agreement may be
amended only by a writing executed by the Company and you which specifically
states that it is amending this Agreement. Notwithstanding the foregoing, this
Agreement may be amended solely by the Company by a writing which specifically
states that it is amending this Agreement, so long as a copy of such amendment
is delivered to you, and provided that no such amendment adversely affecting
your rights hereunder may be made without your written consent. Without
limiting the foregoing, the Company reserves the right to change, by written 


 

















 


notice to you, the provisions of this Agreement in
any way it may deem necessary or advisable to carry out the purpose of the
grant as a result of any change in applicable laws or regulations or any future
law, regulation, ruling, or judicial decision, provided that any such change
shall be applicable only to rights relating to that portion of the Award that
has not been delivered to you in Common Stock pursuant to Section 3.


 


15.                               MISCELLANEOUS.


 


(a)                                  The rights and
obligations of the Company under your Award shall be transferable by the
Company to any one or more persons or entities, and all covenants and
agreements hereunder shall inure to the benefit of, and be enforceable by the
Company’s successors and assigns.


 


(b)                                  You agree upon
request to execute any further documents or instruments necessary or desirable
in the sole determination of the Company to carry out the purposes or intent of
your Award.


 


(c)                                  You acknowledge
and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting
your Award and fully understand all provisions of your Award.


 


(d)                                  This Agreement
shall be subject to all applicable laws, rules, and regulations, and to such
approvals by any governmental agencies or national securities exchanges as may
be required.


 


(e)                                  All obligations
of the Company under the Plan and this Agreement shall be binding on any
successor to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation, or otherwise, of all
or substantially all of the business and/or assets of the Company.


 


16.                               GOVERNING PLAN DOCUMENT.  Your Award is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your Award, and
is further subject to all interpretations, amendments, rules and
regulations which may from time to time be promulgated and adopted pursuant to
the Plan.  In the event of any conflict
between the provisions of your Award and those of the Plan, the provisions of
the Plan shall control; provided, however,
that Section 3 of this Agreement shall govern the timing of any
distribution of Common Stock under your Award. 
The Company shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation,
and application of the Plan as are consistent therewith and to interpret or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Board shall be final and binding upon you, the
Company, and all other interested persons. No member of the Board shall be
personally liable for any action, determination, or interpretation made in good
faith with respect to the Plan or this Agreement.


 


17.                               EFFECT ON OTHER EMPLOYEE BENEFIT PLANS.  The value of the Award subject to this
Agreement shall not be included as compensation, earnings, salaries, or other
similar terms used when calculating benefits under any employee benefit plan
(other than the Plan) sponsored by the Company or any Affiliate except as such
plan otherwise expressly provides. The Company expressly reserves its rights to
amend, modify, or terminate any or all of the employee benefit plans of the
Company or any Affiliate.


 


18.                               CHOICE OF LAW.  The
interpretation, performance and enforcement of this Agreement shall be governed
by the law of the state of Colorado  without
regard to such state’s conflicts of laws rules.


 

















 


19.                               SEVERABILITY.  If all or
any part of this Agreement or the Plan is declared by any court or governmental
authority to be unlawful or invalid, such unlawfulness or invalidity shall not
invalidate any portion of this Agreement or the Plan not declared to be
unlawful or invalid. Any Section of this Agreement (or part of such a
Section) so declared to be unlawful or invalid shall, if possible, be construed
in a manner which will give effect to the terms of such Section or part of
a Section to the fullest extent possible while remaining lawful and valid.


 


20.                               OTHER DOCUMENTS.  You
hereby acknowledge receipt or the right to receive a document providing the
information required by Rule 428(b)(1) promulgated under the
Securities Act (which includes the prospectus for the Plan).  In addition, you acknowledge receipt of the
Company’s Insider Trading Policy and related
Addendum to Insider Trading Policy.


 


 


Paul
L. Berns


President
and CEO