Exhibit 10.2


 


ALLOS THERAPEUTICS, INC.


 


FIRST AMENDMENT TO

AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


PABLO J. CAGNONI, MD


 


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 PABLO J. CAGNONI, MD (“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:


 


1

















 


“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.


 


2

















 


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]


 


3

















 


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/ Pablo J. Cagnoni

  
	
   

  	
  PABLO J. CAGNONI, MD

  



 


 


Signature
Page to First Amendment to

Amended and Restated Employment Agreement