Exhibit 10.43


 


Execution Copy


 


WARBURG
PINCUS PRIVATE EQUITY VIII, L.P.


466 Lexington Avenue


New York, NY 10017


 


 


March 4, 2005


 


 


Allos Therapeutics, Inc.


11080 CirclePoint Road


Westminster, CO 80020


Attention: Chief Executive
Officer


 


Gentlemen:


 


In connection with the
acquisition of shares of Series A Exchangeable Preferred Stock, par value
$0.001 per share (the “Preferred Stock”), of Allos Therapeutics, Inc., a
Delaware corporation (the “Company”), by Warburg Pincus Private Equity
VIII, L.P., a Delaware limited partnership (the “Purchaser”), Warburg
Pincus & Co., a New York general partnership and the sole general partner
of the Purchaser (“WP”), and Warburg Pincus LLC, a New York limited
liability company and the sole manager of the Purchaser (“WP LLC” and,
collectively, WP LLC, WP and the Purchaser are referred to herein as, the “Purchaser
Group”), the Company and the Purchaser Group agree as follows:


 


1.             Definitions.  For purposes of this letter agreement, the
following terms have the respective meanings set forth below:


 


“Affiliates”
shall mean any fund, whether existing now or in the future, of which WP (or any
entity controlled by WP) is a general partner or WP LLC (or any entity
controlled by WP LLC) is a manager.


 


“Beneficially
Owns” (including the terms “Beneficial Ownership”, “Beneficially
Owned” or “Beneficially Owning”) shall mean beneficial ownership
within the meaning of Rule 13d-3 under the Exchange Act.


 


“Board”
shall mean the Board of Directors of the Company.


 


“Change
of Control” shall mean (i) a consolidation, merger, reorganization or other
form of acquisition of or by the Company in which the Company’s stockholders
immediately prior to the transaction retain less than 50% of the voting power
of or economic interest in the surviving or resulting entity (or its parent)
immediately after the transaction, (ii) a sale of the Company’s assets in
excess of a


 





















 


majority of the Company’s
assets (valued at fair market value as determined in good faith by the Board),
(iii) the acquisition by any person, other than the Purchaser Group and its
Affiliates, of more than 50% of the Company’s outstanding voting securities, or
(iv) during any period of 24 consecutive months, individuals who at the
beginning of such period were directors of the Company (together with any new
directors whose election or appointment was approved by the directors then in
office) cease for any reason to constitute a majority of the directors of the
Board or the board of directors of the surviving or resulting entity (or its parent).


 


“Independent
Directors” shall mean those directors that the Board has determined to be
independent within the meaning of NASD Marketplace Rule 4200(15) (or any
successor rule).


 


2.             Standstill.


 


(a)           For a period of
four years from the date hereof (the “Standstill Period”), no member of
the Purchaser Group or any of their respective Affiliates shall, without the
prior written consent of a majority of the Independent Directors who are not
affiliated with the Purchaser Group, in any manner acquire, agree or seek to
acquire, or make any proposal or offer (other than to a member of the Board or
senior management of the Company by means that would not cause public
dissemination thereof) to acquire, whether directly or indirectly:


 


(i)            any material
assets of the Company or


 


(ii)           Beneficial
Ownership of any shares of Common Stock, par value $0.001 per share, of the
Company (“Common Stock”), voting equity securities of the Company or any
securities convertible or exchangeable into or exercisable for any such shares
of Common Stock or other securities (including derivatives), in excess of 44%
of (x) the outstanding Common Stock, plus (y) the Common Stock issuable upon
the exchange of the Company’s outstanding Preferred Stock (including any
quarterly accruing dividends thereon) (the “Exchange Shares”), calculated as if
such Exchange Shares had been issued pursuant to an exchange as of immediately
following the original issuance of each such share of outstanding Preferred
Stock (collectively, the “Permitted Shares”).


 


(b)           For so long as
Purchaser or its Affiliates Beneficially Own more than (i) 580,000 shares of
Preferred Stock acquired pursuant to the Securities Purchase Agreement dated as
of the date hereof by and between the Company and the Purchaser (the “Securities
Purchase Agreement”), or (ii) 10% of the Company’s outstanding Common
Stock, no member of the Purchaser Group or any of their respective Affiliates
shall, without the prior written consent of a majority of the Independent
Directors who are not affiliated with the Purchaser Group:


 


(i)            propose to any
person (other than to a member of the Board or senior management of the Company
by means that would not cause public dissemination thereof) or effect, seek to
effect or enter into, whether alone or in concert with others, any merger,
tender offer, consolidation, acquisition, scheme, business combination or other


 


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extraordinary transaction in
which the Company or any of its subsidiaries is a constituent corporation or
party (a “Business Combination”);


 


(ii)           solicit proxies or
shareholder consents or participate in any such solicitation for any purpose
relating to the election or removal of directors of the Company;


 


(iii)          support,
solicit proxies or shareholder consents or participate in any such solicitation
or vote in favor of any Business Combination, or propose to any person or
effect, seek to effect or enter into, whether alone or in concert with others,
any Business Combination, in which the Purchaser Group, in the event the
Preferred Stock has been exchanged for Common Stock in accordance with the
terms thereof, receives or would be entitled to receive consideration on a per
share basis which is greater than the consideration to be received on a per share
basis by the other holders of Common Stock; provided,
however, that in the event the Preferred Stock remains outstanding
at the time of a Change of Control, nothing contained herein shall limit or
otherwise prevent the Purchaser Group from receiving the consideration per
share for their shares of Preferred Stock that they Beneficially Own in
accordance with the terms of such Preferred Stock;


 


(iv)          form, join,
encourage, influence, advise or participate in a “group” (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) in connection with any of the foregoing;


 


(v)           make, or take any
action (including a request to waive or amend any provision of this agreement)
that would cause the Company to make, a public announcement regarding any
intention of the Purchaser Group or any of their respective Affiliates to take
an action which would be prohibited by any of the foregoing.


 


(c)           Notwithstanding
the foregoing, the provisions of this Section 2 shall only be in effect so long
as the Company is not in material breach of its obligations under this
Agreement or under Section 5.4 of the Securities Purchase Agreement with
respect to the Purchaser Group.


 


3.             No Effect on
Directors. 
Notwithstanding any of the foregoing, the provisions set forth in
Section 2 shall in no way limit the ability of any individual who is serving as
a director of the Company to take any actions (or to refrain from taking any
actions) in their capacity as directors of the Company.


 


4.             Voting Agreement.  In the event the Purchaser Group and their
Affiliates Beneficially Own more than 33% of the Company’s outstanding Common
Stock, any shares of Common Stock entitled to vote for the election of
directors Beneficially Owned by the Purchaser Group and their Affiliates in
excess of 33% of the shares of Common Stock then outstanding, with respect to
the election or removal of directors only, shall be voted either, solely at the
Purchaser Group’s election (a) as recommended by the Board or (b)(i) in an
election, in the same proportion with the votes of shares of Common Stock voted
in such election (excluding shares


 


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with
respect to which the votes were withheld, abstained or otherwise not cast)  and not Beneficially Owned by the Purchaser
Group (excluding withheld shares and abstentions) or (ii) in a removal vote, in
the same proportions as all outstanding shares of Common Stock not Beneficially
Owned by the Purchaser Group (including shares with respect to which the votes
were withheld, abstained or otherwise not cast), whether at an annual or
special meeting of stockholders of the Company, by written consent or
otherwise.  The Purchaser Group shall
retain its right to vote (or to withhold its vote) all of its shares on all
other matters.


 


5.             Waiver of
Section 203.  The Company
represents and warrants to the Purchaser Group that the Board has taken all
action necessary to approve the acquisition of the Preferred Stock pursuant to
the Securities Purchase Agreement for the purposes of the provisions of Section
203 of the General Corporation Law of the State of Delaware (“Section 203”)
solely as it relates to the acquisition by the Purchaser Group of beneficial
ownership of the Common Stock (the “Waiver”); provided, however,
such Waiver provides that, to the fullest extent permitted by law, it shall no
longer be applicable if, subsequent to becoming an “interested stockholder” (as
defined in Section 203), the Purchaser Group no longer has beneficial ownership
of 15% or more of the Common Stock as a result of any sale or disposition of
beneficial ownership of Common Stock by the Purchaser Group.


 


6.             Amendments to
Rights Agreement.  The Company
represents and warrants to the Purchaser Group that the Rights Agreement, dated
May 6, 2003, by and between the Company and Mellon Investor Services LLC, as
rights agent (the “Rights Agreement”), has been duly amended to exclude
the Purchaser Group from the definition of the term “Acquiring Person” as such
term may relate to the acquisition by the Purchaser Group (including by “affiliates”
and “associates”, as such terms are defined in Rule 12b-2 under the Exchange
Act, of the Purchaser Group) of Beneficial Ownership of the Permitted Shares
described in Section 2(a)(ii) hereof.  During the Standstill Period, so long as the
Purchaser Group is not in material breach of its obligations under this
Agreement, the Company shall not amend or modify the definition of “Acquiring
Person” in the Rights Agreement, if, as a result of such amendment or
modification, the Purchaser Group would be deemed to be an “Acquiring Person”
thereunder.  During the Standstill
Period, so long as the Purchaser Group is not in material breach of its
obligations under this Agreement, the Company shall not adopt a new rights
agreement or an agreement having substantially the same effect of the Rights
Agreement if the Purchaser Group would be considered an “Acquiring Person” (or
would have the same or substantially similar effect of an “Acquiring Person”
under the Rights Agreement).


 


7.             Representations.  Each party represents to the other that: (a)
this letter agreement has been duly authorized by all necessary corporate or
partnership action, as the case may be; and (b) this letter agreement is a
valid and binding agreement of such party, enforceable against it in accordance
with its terms.


 


8.             Specific
Enforcement; Legal Effect.  The
parties hereto agree that any breach of this letter agreement would result in
irreparable injury to other party and that money damages would not be an
adequate remedy for such breach. 
Accordingly, without prejudice to the rights and remedies otherwise
available under applicable law, either party shall be entitled to


 


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specific performance and equitable relief by way of
injunction or otherwise if the other party breaches or threatens to breach any
of the provisions of this letter agreement. 
It is further understood and agreed that no failure or delay by either
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.  If any term,
provision, covenant or restriction in this letter agreement is held by a court
of competent jurisdiction to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this letter agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, provided that the parties hereto shall negotiate in good faith
to attempt to place the parties in the same position as they would have been in
had such provision not been held to be invalid, void or unenforceable.  This letter agreement contains the entire
agreement between the parties hereto concerning the matters addressed
herein.  No modification of this letter
agreement or waiver of the terms and conditions hereof shall be binding upon
either party hereto, unless approved in writing by each such party; provided,
however, that no waiver or amendment shall be effective as against the
Company unless such waiver or amendment is approved in writing by the vote a
majority of the independent members of the Board who are not affiliated with
the Purchaser Group.  This Agreement
shall be governed by and construed in accordance with the law of the State of
Delaware without regard to principles of conflicts of law that would cause the
application of the laws of any jurisdiction other than the State of Delaware.


 


9.             Termination.  This agreement shall continue in full force
and effect from the date hereof until such time as the Purchaser Group holds
less than 10% of (i) the Company’s outstanding Common Stock, plus (ii) the
Exchange Shares, calculated as if such Exchange Shares had been issued pursuant
to an exchange as of immediately following the original issuance of each share
of outstanding Preferred Stock.


 


10.           Counterparts.  This letter agreement may be executed in
counterpart (including by facsimile), each of which shall be deemed an
original.


 


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If you are in agreement with the terms set forth above, please sign
this letter agreement in the space provided below and return an executed copy
to the undersigned.


 


	
   

  	
  Very truly
  yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WARBURG
  PINCUS PRIVATE EQUITY

  
	
   

  	
   

  	
  VIII,
  L.P.

  
	
   

  	
   

  
	
   

  	
  By:  WARBURG PINCUS & CO.,

  
	
   

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Jonathan Leff

  	
   

  
	
   

  	
  Name:

  	
  Jonathan Leff

  
	
   

  	
  Title:

  	
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
  Confirmed
  and Agreed:

  	
   

  
	
   

  	
   

  
	
  ALLOS
  THERAPEUTICS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/
  Michael E. Hart

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael E.
  Hart

  	
   

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  	
   

  
										



 


 


STANDSTILL AGREEMENT