Exhibit 10.3


 


ALLOS THERAPEUTICS, INC.


 


FIRST AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


JAMES V. CARUSO


 


This FIRST
AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “First
Amendment”) is entered into effective as of May 20, 2009,
by and between ALLOS THERAPEUTICS, INC. (the “Company”)
and JAMES V. CARUSO (“Executive”) (collectively, the “Parties”).


 


RECITALS:


 


WHEREAS, the
Parties entered into an Amended and Restated Employment Agreement on December 13,
2007 (the “Employment Agreement”);


 


WHEREAS, the
Employment Agreement provides for the acceleration of vesting of Executive’s
stock option and restricted stock awards in connection with the Executive’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 Executive have agreed to this First Amendment in order to, among
other things, provide (i) for acceleration of the vesting of all of
Executive’s outstanding stock options and/or other stock awards, including
without limitation restricted stock and restricted stock units, should
Executive’s employment be terminated within the period prior to or following a
change in control of the Company as specified in the Employment Agreement, (ii) cessation
of vesting of all of Executive’s unvested stock options and/or other stock awards
should Executive’s employment be terminated under circumstances other than in
connection with a change of control of the Company, and (c) reduction of
the acceleration of vesting of all unvested stock options and/or other stock
awards, as necessary, if certain payments to the Executive are subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
as amended.


 


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 Company and Executive hereby
agree as follows:


 


1.              The last sentence of
each of Section 12(a), Section 12(b), Section 12(c) and Section 12(d) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


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


 


2.              The second paragraph
of Section 12(e) of the Employment Agreement is hereby amended and
restated to read in its entirety as follows:


 


“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 Just 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.”


 


3.              The last sentence of
Section 17(b) of the Employment Agreement is hereby amended and
restated to read in its entirety as follows:


 


“The reduction of Payments, if applicable,
shall be made by first reducing the acceleration of Executive’s stock option
vesting (if any) and the acceleration of the vesting of Executive’s other stock
awards (if any), and then by reducing the payments under Section 12(e)(v),
(iv), (ii), (iii), (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.”


 


4.              The first sentence
of Section 18(a) of the Employment Agreement is hereby amended and
restated to read in its entirety as follows:


 


“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.”


 


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


 


6.              This First Amendment
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.


 


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7.              If any contest or
dispute shall arise under this First Amendment, each party hereto shall bear
its own legal fees and expenses.


 


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 parties hereto acknowledge that this First Amendment constitutes
the minimum contacts to establish personal jurisdiction in Colorado and agree
to a Colorado court’s exercise of personal jurisdiction. The parties hereto
further agree that any disputes relating to this First Amendment shall be
brought in courts located in the State of Colorado.


 


9.              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 shall constitute one and the same instrument.
The execution of this First Amendment may be by actual or facsimile signature.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, the parties hereto have
each duly executed this FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT effective
as of the date and year first written above.


 


 


	
   

  	
  ALLOS THERAPEUTICS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul L. Berns

  
	
   

  	
  Name:

  	
  Paul Berns

  
	
   

  	
  Title:

  	
  CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ James V. Caruso

  
	
   

  	
  JAMES V. CARUSO

  



 


 


Signature
Page to First Amendment to

Amended and Restated Employment Agreement