Exhibit 10.4


 


ALLOS THERAPEUTICS, INC.


 


FIRST AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


MARC H. GRABOYES


 


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 MARC
H. GRABOYES (“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 10(a), Section 10(b), Section 10(c) and Section 10(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 10(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 14(b) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


“The reduction of Executive’s Payments pursuant to
this Section 14, 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 10(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.”


 


4.               Section 15(a) of
the Employment Agreement is hereby amended and restated to read in its entirety
as follows:


 


“(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.”


 


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/
  Marc H. Graboyes

  
	
   

  	
  MARC H. GRABOYES

  



 


Signature Page to First Amendment to

Amended and Restated Employment Agreement