Exhibit
10.1


 


ALLOS THERAPEUTICS,
INC.


 


FIRST AMENDMENT
TO

SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (this “First Amendment”) is made and entered into as of May 20, 2009, by and between
Allos Therapeutics, Inc., a Delaware corporation (the “Company”),
and Paul L. Berns (“Employee”).


 


RECITALS:


 


WHEREAS, the Company and Employee entered into a
Second Amended and Restated Employment Agreement dated December 13, 2007
the “Employment Agreement”);


 


WHEREAS, the Employment Agreement provides for the
acceleration of vesting of Employee’s stock option and restricted stock awards
in connection with the Employee’s termination of employment within specified
periods prior to or following a change in control of the Company;


 


WHEREAS, the Company granted restricted stock units to
its executive officers and certain other employees as part of the Company’s
2009 annual performance review and appraisal process; and


 


WHEREAS, the Company and Employee have agreed to this
First Amendment in order to, among other things, provide (i) for
acceleration of the vesting of all of Employee’s outstanding stock options
and/or other stock awards, including without limitation restricted stock and
restricted stock units, should Employee’s employment be terminated within the
period prior to or following a change in control of the Company as specified in
the Employment Agreement and (ii) that all of Employee’s outstanding stock
options and/or other stock awards shall be treated in accordance with the terms
of the Company’s equity incentive plans and the applicable stock option agreement or other stock award
agreement should Employee’s employment be terminated under circumstances other
than in connection with a change of control of the Company.


 


NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are mutually acknowledged, the Company and
Employee hereby agree as follows:


 


1.              The last sentence of Section 8(b) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


“Except as set forth in this Section 8(b), following Employee’s
termination by reason of his death or Disability, Employee shall have no
further rights to any compensation or any other benefits under this Agreement; provided, that Employee’s then outstanding stock
options and/or


 

















 


other
stock awards shall be treated in accordance with the terms of the Company’s
equity incentive plans and the applicable stock option agreement or other stock
award agreement.”


 


2.              The last sentence of Section 8(c) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


“Following such termination of Employee’s employment for Cause, except
as set forth in this Section 8(c), Employee shall have no further rights
to any compensation or any other benefits under this Agreement; provided, that Employee’s then
outstanding stock options and/or other stock awards shall be treated in
accordance with the terms of the Company’s equity incentive plans and the
applicable stock option agreement or other stock award agreement.”


 


3.              Section 8(d)(v) of the Employment
Agreement is hereby amended and restated to read in its entirety as follows:


 


“(v) all then outstanding stock options and/or other stock awards
shall be treated in accordance with the terms of the Company’s equity incentive
plans and the applicable stock option agreement or other stock award agreement;”


 


4.              The second sentence of Section 8(f) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


“In the event of a termination of employment by Employee under this Section 8(f),
Employee shall be entitled only to the Accrued Obligations; provided, that Employee’s then
outstanding stock options and/or other stock awards shall remain subject to the
terms and conditions of the Plan and the applicable stock option agreement or
other stock award agreement.”


 


5.              Section 8(g)(iv) of the Employment
Agreement is hereby amended and restated to read in its entirety as follows:


 


“(iv) immediate vesting of all outstanding stock options and/or
other stock awards and the extension of the option exercise period for twenty-four
(24) months;”


 


6.              Except as modified herein, the terms and
conditions of the Employment Agreement shall remain unchanged and in full force
and effect.


 


7.              Any waiver, alteration, amendment or
modification of any of the terms of this First Amendment shall be valid only if
made in writing and signed by each of the parties hereto; provided, however, that
any such waiver, alteration, amendment or modification is consented to on the
Company’s behalf by the Board of Directors of the Company.


 


8.              THIS FIRST AMENDMENT AND ALL DISPUTES
RELATING TO THIS FIRST AMENDMENT 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 COMPANY
AND EMPLOYEE AGREE THAT


 


2

















 


THIS
FIRST AMENDMENT CONSTITUTES THE MINIMUM CONTACTS TO ESTABLISH PERSONAL
JURISDICTION IN COLORADO AND AGREE TO COLORADO COURT’S EXERCISE OF PERSONAL
JURISDICTION. THE COMPANY AND EMPLOYEE FURTHER AGREE THAT ANY DISPUTES RELATING
TO THIS FIRST AMENDMENT SHALL BE BROUGHT IN THE COURTS LOCATED IN THE STATE OF
COLORADO.


 


9.              If any contest or dispute shall arise under
this First Amendment, each party hereto shall bear its own legal fees and
expenses, provided, however, that in the event Employee prevails with respect to a substantial
aspect of such contest or dispute, the Company shall be required to reimburse
Employee for reasonable legal fees and expenses incurred by him in connection
therewith.


 


10.       This First Amendment 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 First Amendment
may be by actual or facsimile signature.


 


[Signature Page Follows]


 


3

















 


IN WITNESS WHEREOF, the undersigned have executed this First Amendment to Second
Amended and Restated Employment Agreement as of the date first written above.


 


 


	
   

  	
  THE
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  ALLOS
  THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Marc Graboyes

  
	
   

  	
  Name:

  	
  Marc Graboyes

  
	
   

  	
  Title:

  	
  SVP, General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EMPLOYEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Paul L. Berns

  
	
   

  	
  PAUL
  L. BERNS

  



 


 


Signature Page to First Amendment to Second

Amended and Restated Employment Agreement