Exhibit
10.1


 


ALLOS THERAPEUTICS, INC.

EMPLOYMENT AGREEMENT FOR

Marc H. Graboyes


 


This Employment Agreement (the “Agreement”)
is entered into effective as of October 11, 2004, by and between Allos Therapeutics, Inc., (the “Company”),
and Marc H. Graboyes  (“Executive”) (collectively, the “Parties”).


 


Whereas, the Parties have each signed a letter for an
offer of employment dated September 20, 2004 (the “Former Offer”);


 


Whereas, the Parties wish that this Agreement
supercede and completely replace the Former Offer;


 


Whereas, the Company wishes to
employ Executive on the terms set forth herein; and


 


Whereas,  Executive
wishes to be so employed under the terms set forth herein.


 


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 Parties agree to the following terms and conditions of
Executive’s employment:


 


1.             Employment.  The Company hereby agrees to employ Executive
as Vice President, General Counsel and Executive hereby accepts such
employment upon the terms and conditions set forth herein as of the date first
written above.


 


2.             At-Will Employment.  It is understood and
agreed by the Company and Executive that this Agreement does not contain any
promise or representation concerning the duration of Executive’s employment
with the Company. Executive specifically acknowledges that his employment with
the Company is at-will and may be altered or terminated by either Executive or
the Company at any time, with or without cause and/or with or without
notice.  The nature, terms or conditions
of Executive’s employment with the Company cannot be changed by any oral
representation, custom, habit or practice, or any other writing.  In addition, that the rate of salary, any
bonuses, paid time off, other compensation, or vesting schedules are stated in
units of years or months does not alter the at-will nature of the employment,
and does not mean and should not be interpreted to mean that Executive is
guaranteed employment to the end of any period of time or for any period of
time. In the event of conflict
between this disclaimer and any other statement, oral or written, present or
future, concerning terms and conditions of employment, the at-will relationship
confirmed by this disclaimer shall control. 
This at-will status cannot be altered except in writing signed by
Executive and the Chairman of the Board of Directors.


 


3.             Duties.  Executive shall render full-time services to
the Company as its Vice President, General Counsel.  At the outset of employment, Executive shall
report to the Company’s Chief Executive Officer.  Executive shall devote his best efforts and
his full business


 


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time, skill and attention to the performance of his duties on behalf of
the Company.  Of course, the Company
reserves the right to modify Executive’s job duties and responsibilities as
necessary.


 


4.             Policies and Procedures.  Executive agrees that he is subject to and
will comply with the policies and procedures of the Company, as such policies
and procedures may be modified, added to or eliminated from time to time at the
sole discretion of the Company, except to the extent any such policy or
procedure specifically conflicts with the express terms of this Agreement.  Executive further agrees and acknowledges
that any written or oral policies and procedures of the Company do not
constitute contracts between the Company and Executive.


 


5.             Compensation.  For all services rendered and to be
rendered hereunder, the Company agrees to pay to the Executive, and the
Executive agrees to accept a base salary of $205,000
per annum. Any such salary shall be payable in equal biweekly
installments and shall be subject to such deductions or withholdings as the
Company is required to make pursuant to law, or by further agreement with the
Executive.  The Board of Directors may
adjust the Executive’s compensation from time to time in its sole and complete
discretion.


 


6.             Bonus. 
Executive will be eligible for a discretionary bonus, based on both
corporate and individual goals, in an amount equal to 25% of Executive’s base
salary (“Bonus”).  The decision to award the Bonus and/or to
modify the amount of any bonus given is within the sole and complete discretion
of the Compensation Committee of the Board of Directors.


 


7.             Stock Options.  Subject to the approval of the
Compensation Committee of the Board of Directors, Executive will receive an
option to purchase 80,000 shares of the Company’s Common Stock under the
Company’s 2000 Stock Incentive Compensation Plan (the “2000 Plan”) at an exercise price equal to
the closing sale price of the Company’s Common Stock as reported on the NASDAQ
National Market on the date such options are approved by the Compensation
Committee of the Board of Directors. 
Such options will be subject to the terms and conditions of the 2000
Plan, and will vest over a four (4) year period, with 25% of such options
vesting one (1) year after the date of grant, and the remaining 75% of such
options vesting in equal monthly installments thereafter over the next three
(3) years.


 


8.             Other Benefits.  While employed by the Company as provided
herein:


 


(a)           Executive
and Employee Benefits.  The Executive shall be entitled to all
benefits to which other executive officers of the Company are entitled, on
terms comparable thereto, including, without limitation, participation in the
401(k) plan, group insurance policies and plans, medical, health, vision, and
disability insurance policies and plans, and the like, which may be maintained
by the Company for the benefit of its executives. The Company reserves the
right to alter and amend the benefits received by Executive from time to time
at the Company’s discretion.


 


(b)           Out-of-Pocket
Expense Reimbursement.  The Executive
shall receive, against presentation of proper receipts and vouchers,
reimbursement for direct and reasonable out-of-pocket expenses incurred by him
in connection with the performance of his duties hereunder, according to the
policies of the Company.


 


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(c)           Personal
Time Off.  The Executive shall be
entitled to personal time off and sick leave according to the Company’s
benefits package.


 


9.             Proprietary and Other Obligations.  Executive acknowledges that signing and
complying with the Company’s Proprietary Information, Inventions,
Non-Competition and Non-Solicitation Agreement (“Confidentiality Agreement”), in the form attached hereto as Exhibit A, is a condition of his employment by the
Company.  Executive therefore agrees to
sign and comply with the Confidentiality Agreement and acknowledges that by
beginning employment with the Company, he will be deemed to have signed and
agreed to the provisions of the Confidentiality Agreement.


 


10.          Termination.  Executive and the Company each acknowledge
that either party has the right to terminate Executive’s employment with the
Company at any time for any reason whatsoever, with or without cause or advance
notice pursuant to the following:


 


(a)           Termination
by Death or Disability.  Subject to
applicable state or federal law, in the event Executive shall die during the
period of his employment hereunder or become permanently disabled, as evidenced
by notice to the Company and Executive’s inability to carry out his job
responsibilities for a continuous period of more than three months, Executive’s
employment and the Company’s obligation to make payments hereunder shall
terminate on the date of his death, or the date upon which, in the sole
determination of the Board of Directors, Executive has failed to carry out his
job responsibilities for three months, except that the Company shall pay
Executive’s estate any salary earned but unpaid prior to termination, all
accrued but unused vacation and any business expenses that were incurred but
not reimbursed as of the date of termination. 
Vesting of any unvested stock options shall cease on the date of
termination.


 


(b)           Voluntary
Resignation by Executive.  In the
event Executive voluntarily terminates his employment with the Company (other
than for Good Reason (as defined below)), the Company’s obligation to make
payments hereunder shall cease upon such termination, except that the Company
shall pay Executive any salary earned but unpaid prior to termination, all
accrued but unused vacation and any business expenses that were incurred but
not reimbursed as of the date of termination. 
Vesting of any unvested stock options shall cease on the date of
termination.


 


(c)           Termination
for Just Cause.  In the event the
Executive is terminated by the Company for Just Cause (as defined below), the
Company’s obligation to make payments hereunder shall cease upon the date of
receipt by Executive of written notice of such termination (the “date of termination” for purposes of this
paragraph 10(c)), except that the Company shall pay Executive any salary
earned but unpaid prior to termination, all accrued but unused vacation and any
business expenses that were incurred but not reimbursed as of the date of
termination.  Vesting of any unvested
stock options shall cease on the date of termination.


 


(d)           Termination
by the Company without Just Cause Or Resignation for Good Reason (Other Than
Change in Control).  The Company
shall have the right to terminate Executive’s employment with the Company at
any time without Just Cause.  In the
event Executive is terminated by the Company without Just Cause or Executive
resigns for Good Reason (other than in connection with a Change in Control (as
defined below)), and upon the 


 


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execution of a full general release by Executive (“Release”,
in the form attached hereto as Exhibit B),
releasing all claims known or unknown that Executive may have against the
Company as of the date Executive signs such release, and upon the written
acknowledgment of his continuing obligations under the Confidentiality
Agreement, Executive shall be entitled to receive the following severance
benefits:  (i) continuation of Executive’s
base salary, then in effect, for a period of six (6) months following the
Termination Date, paid on the same basis and at the same time as previously
paid; (ii) payment of any accrued but unused vacation and sick leave; and (iii)
the Company shall pay the premiums of Executive’s group health insurance COBRA
continuation coverage, including coverage for Executive’s eligible dependents,
for a maximum period of six (6) months following a termination without Just
Cause or resignation for Good Reason; provided, however,
that (a) the Company shall pay premiums for Executive’s eligible dependents
only for coverage for which those eligible dependents were enrolled immediately
prior to the termination without Just Cause or resignation for Good Reason and
(b) the Company’s obligation to pay such premiums shall cease immediately upon
Executive’s eligibility for comparable group health insurance provided by a new
employer of Executive.


 


(e)           Change in Control
Severance Benefits.  In the event
that 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 thirteen (13) months following the effective
date of a Change in Control (“Change in Control
Termination”), and upon the execution of a Release, Executive shall
be entitled to receive the following Change in Control severance benefits:  (i) continuation of Executive’s base salary,
then in effect, for a period of one (1) year following the Termination Date,
paid on the same basis and at the same time as previously paid; (ii) payment of
any accrued but unused vacation and sick leave; (iii) a bonus in the amount
equal to the bonus amount paid to Executive in the year immediately preceding
the Change in Control or 50% of the maximum bonus eligibility if the Executive
was not employed by the Company during the prior year bonus period; and (iv)
the Company (or any surviving or acquiring corporation) shall pay the premiums
of Executive’s group health insurance COBRA continuation coverage, including
coverage for Executive’s eligible dependents, for a maximum period of twelve
(12) months following a Change in Control Termination; provided,
however, that (a) the Company (or any surviving or acquiring corporation)
shall pay premiums for Executive’s eligible dependents only for coverage for
which those eligible dependents were enrolled immediately prior to the Change
in Control Termination and (b) the Company’s (or any surviving or acquiring
corporation’s) obligation to pay such premiums shall cease immediately upon
Executive’s eligibility for comparable group health insurance provided by a new
employer of Executive. If Executive obtains
new employment pursuant to which he is employed on an average of 30 hours or
more each week, he may request, upon written notification to the Company (or
any surviving or acquiring corporation), to
receive any unpaid severance benefits (subject to required deductions and tax
withholdings) within 14 days after receipt by the company of such written
notice. Executive agrees that the Company’s (or any surviving or
acquiring corporation) payment of health insurance premiums will satisfy its
obligations under COBRA for the period provided.  No insurance premium payments will be made
following the effective date of Executive’s coverage by a health insurance plan
of a subsequent employer.  For the
balance of the period that Executive is entitled to coverage under federal
COBRA law, if any, Executive shall be entitled to maintain such coverage at
Executive’s own expense.


 


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In addition, notwithstanding anything contained in
Executive’s stock option 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 thirteen (13) months following the effective date of a Change in
Control, and any surviving corporation or acquiring corporation assumes
Executive’s stock options or substitutes similar options for Executive’s stock
options in accordance with the terms of the 2000 Plan and/or the Company’s 2002
Broad-Based Equity Incentive Plan (the “2002 Plan”), as
applicable, then the vesting of all of Executive’s stock options (or any
substitute options) shall be accelerated in full and the term and the period
during which such 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 grant notice and/or agreement evidencing such options.  Alternatively, in connection with any Change
of Control, if any surviving corporation or acquiring corporation does not
assume Executive’s stock options or substitute similar options for Executive’s
stock options in accordance with the terms of the 2000 Plan and/or the 2002
Plan, as applicable, then the vesting of all of Executive’s stock options shall
be accelerated in full.


 


11.          Definitions.


 


(a)           Just
Cause.  As used in this Agreement, “Just Cause” shall mean the occurrence of
one or more of the following: (i) Executive’s conviction of a felony or a crime
involving moral turpitude or dishonesty; (ii) Executive’s participation in a
fraud or act of dishonesty against the Company; (iii) Executive’s intentional
and material damage to the Company’s property; (iv) material breach of
Executive’s employment agreement, the Company’s written policies, or the
Confidentiality Agreement that is not remedied by Executive within fourteen
(14) days of written notice of such breach from the Board of Directors; or (v)
conduct by Executive which demonstrates Executive’s gross unfitness to serve the
Company as Vice President, General Counsel, as determined in the sole
discretion of the Board of Directors. 
Executive’s physical or mental disability or death shall not constitute
cause hereunder.


 


(b)           Good
Reason.  As used in this Agreement, “Good Reason” shall mean any one of the
following events which occurs on or after the commencement of Executive’s
employment without Executive’s consent: 
(i) any reduction of Executive’s then existing annual salary base or
annual bonus target by more than ten percent (10%), unless the Executive
accepts such reduction in compensation opportunity or such reduction is done in
conjunction with similar reductions for similarly situated executives of the
Company; (ii) any request by the Company (or any surviving or acquiring
corporation) that the Executive relocate to a work site that would increase
Executive’s one-way commute distance by more than thirty-five (35) miles from
his then principal residence in Colorado, unless the Executive accepts such
relocation opportunity; or (iii) for purposes of Section 9(e) only, if the
Company or any surviving corporation following a Change in Control fails to
offer the Executive a position that is equivalent in pay, benefits and
responsibilities.


 


(c)           Change in
Control.  As used in this Agreement,
a “Change in Control” is defined
as: (a)  a sale, lease, exchange or other
transfer in one transaction or a series of related transactions of all or
substantially all of the assets of the Company (other than the transfer of the
Company’s assets to a majority-owned subsidiary corporation); (b) a merger or
consolidation in which the Company is not the surviving corporation (unless the
holders of the Company’s


 


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outstanding voting stock immediately prior to such transaction own,
immediately after such transaction, securities representing at least fifty
percent (50%) of the voting power of the corporation or other entity surviving
such transaction); (c) a reverse merger in which the Company is the surviving
corporation but the shares of the Company’s common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise (unless
the holders of the Company’s outstanding voting stock immediately prior to such
transaction own, immediately after such transaction, securities representing at
least fifty percent (50%) of the voting power of the Company); or (d) any
transaction or series of related transactions in which in excess of 50% of the
Company’s voting power is transferred.


 


12.          Termination of Company’s Obligations.  Notwithstanding any provisions in this
Agreement to the contrary, the Company’s obligations, and Executive’s rights
pursuant to Sections 10(d)  and 10(e)
herein, regarding salary continuation and the payment of COBRA premiums, shall
cease and be rendered a nullity immediately should Executive fail to comply
with the provisions of the Confidentiality Agreement or if Executive directly
or indirectly competes with the Company.


 


13.          Miscellaneous.


 


(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 option, or
benefits provided by the Company pursuant to this Agreement.


 


(b)           Modification/Waiver.  This Agreement 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.  Failure of any party at any time or times to
require performance of any provision hereof shall in no manner affect his or
its right at a later time to enforce the same. 
No waiver by a party of a breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more instances
shall be deemed to be or construed as a further or continuing waiver of any
agreement contained in the Agreement.


 


(c)           Severability.  Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.


 


(d)           Successors
and Assigns.  This Agreement is
intended to bind and inure to the benefit of and be enforceable by Executive
and the Company, and their respective successors, assigns, heirs, executors and
administrators, except that Executive may not assign any of his duties
hereunder and he may not assign any of his rights hereunder without the written
consent of the Company, which shall not be withheld unreasonably.


 


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(e)           Notices.  All notices given hereunder shall be
given by certified mail, addressed, or delivered by hand, to the other party at
his or its address as set forth herein, or at any other address hereafter
furnished by notice given in like manner. 
Executive promptly shall notify Company of any change in Executive’s
address.  Each notice shall be dated the
date of its mailing or delivery and shall be deemed given, delivered or
completed on such date.


 


(f)            Governing
Law; Personal Jurisdiction and Venue.  This
Agreement and all disputes relating to this Agreement 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 acknowledge that
this Agreement constitutes the minimum contacts to establish personal
jurisdiction in Colorado and agree to a Colorado court’s exercise of personal
jurisdiction.  The Parties further agree
that any disputes relating to this Agreement shall be brought in courts located
in the State of Colorado.


 


(g)           Entire
Agreement.  This Agreement together
with the Exhibits A  and B attached
hereto set forth the entire agreement and understanding of the parties hereto
with regard to the employment of the Executive by the Company and supersede any
and all prior agreements, arrangements and understandings, written or oral,
pertaining to the subject matter hereof. 
No representation, promise or inducement relating to the subject matter
hereof has been made to a party that is not embodied in these Agreements, and
no party shall be bound by or liable for any alleged representation, promise or
inducement not so set forth.


 


[Remainder
of Page Intentionally Left Blank]


 


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In Witness Whereof, the parties have each duly
executed this Employment Agreement effective as of the day and year first above
written.


 


	
   

  	
  Allos
  Therapeutics, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael E. Hart

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Michael E. Hart

  
	
   

  	
  Its:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:    11080
  CirclePoint Road

  Westminster, CO 80020

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Executive:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Marc H. Graboyes

  	
   

  
	
   

  	
  Marc H. Graboyes

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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Exhibit A to Employment Agreement


 


MANAGER,
EXECUTIVE PERSONNEL OR ASSISTANTS’

PROPRIETARY INFORMATION, INVENTIONS,

NON-COMPETITION, AND NON-SOLICITATION AGREEMENT


 


This Manager, Executive
Personnel or Assistants’ Proprietary Information, Inventions, Non-competition,
and Non-solicitation Agreement (“Agreement”) is made in consideration for my
employment or continued employment by Allos
Therapeutics, Inc.  or its subsidiaries or affiliates (the
“Company”), and the compensation now and hereafter paid to me.  I hereby agree as follows:


 


1.             Nondisclosure.


 


1.1          Recognition
of Company’s Rights; Nondisclosure.  At
all times during my employment and thereafter, I will hold in strictest
confidence and will not disclose, use, lecture upon or publish any of the
Company’s Proprietary Information (defined below), except as such disclosure,
use or publication may be required in connection with my work for the Company,
or unless an officer of the Company expressly authorizes such in writing.  I will obtain the Company’s written approval
before publishing or submitting for publication any material (written, verbal,
or otherwise) that relates to my work at the Company and/or incorporates any
Proprietary Information.  I hereby assign
to the Company any rights I may have or acquire in such Proprietary Information
and recognize that all Proprietary Information shall be the sole property of
the Company and its assigns.


 


1.2          Proprietary
Information.  The term “Proprietary Information” shall mean
any and all confidential and/or proprietary knowledge, data or information of
the Company.  By way of illustration but
not limitation, “Proprietary Information” includes (a) trade secrets,
inventions, mask works, ideas, processes, formulas, source and object codes,
data, programs, other works of authorship, know-how, improvements, discoveries,
developments, designs and techniques (hereinafter collectively referred to as
“Inventions”); and (b) information regarding plans for research,
development, new products, marketing and selling, business plans, budgets and
unpublished financial statements, licenses, prices and costs, suppliers and
customers; and (c) information regarding the skills and compensation of
other employees of the Company. 
Notwithstanding the foregoing, it is understood that, at all such times,
I am free to use information which is generally known in the trade or industry,
which is not gained as result of a breach of this Agreement, and my own, skill,
knowledge, know-how and experience to whatever extent and in whichever way I
wish.


 


1.3          Third
Party Information.  I understand, in
addition, that the Company has received and in the future will receive from
third parties confidential or proprietary information (“Third Party
Information”) subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes.  During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless expressly authorized by an officer of the Company in writing.


 


1.4          No
Improper Use of Information of Prior Employers and Others.  During my employment by the Company I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to


 





















 


whom I have an obligation of confidentiality unless
consented to in writing by that former employer or person.  I will use in the performance of my duties
only information which is generally known and used by persons with training and
experience comparable to my own, which is common knowledge in the industry or
otherwise legally in the public domain, or which is otherwise provided or
developed by the Company.


 


2.             Assignment of Inventions.


 


2.1          Proprietary
Rights.  The term “Proprietary Rights” shall mean all trade secret, patent, copyright, mask work
and other intellectual property rights throughout the world.


 


2.2          Prior
Inventions.  Inventions, if any,
patented or unpatented, which I made prior to the commencement of my employment
with the Company are excluded from the scope of this Agreement.  To preclude any possible uncertainty, I have
set forth on Exhibit A (Previous
Inventions) attached hereto a complete list of all Inventions that I have,
alone or jointly with others, conceived, developed or reduced to practice or
caused to be conceived, developed or reduced to practice prior to the
commencement of my employment with the Company, that I consider to be my
property or the property of third parties and that I wish to have excluded from
the scope of this Agreement (collectively referred to as “Prior
Inventions”).  If disclosure of any such
Prior Invention would cause me to violate any prior confidentiality agreement,
I understand that I am not to list such Prior Inventions in Exhibit A but am
only to disclose a cursory name for each such invention, a listing of the
party(ies) to whom it belongs and the fact that full disclosure as to such
inventions has not been made for that reason. 
A space is provided on Exhibit A
for such purpose.  If no such disclosure
is attached, I represent that there are no Prior Inventions.  If, in the course of my employment with the
Company, I incorporate a Prior Invention into a Company product, process or
machine, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license (with rights to
sublicense through multiple tiers of sublicensees) to make, have made, modify,
use and sell such Prior Invention. 
Notwithstanding the foregoing, I agree that I will not incorporate, or
permit to be incorporated, Prior Inventions in any Company Inventions without
the Company’s prior written consent.


 


2.3          Assignment
of Inventions.  Subject to Sections
2.4, and 2.6, I hereby assign and agree to assign in the future (when any such
Inventions or Proprietary Rights are first reduced to practice or first fixed
in a tangible medium, as applicable) to the Company all my right, title and
interest in and to any and all Inventions (and all Proprietary Rights with
respect thereto) whether or not patentable or registrable under copyright or
similar statutes, made or conceived or reduced to practice or learned by me,
either alone or jointly with others, during the period of my employment with
the Company.  Inventions assigned to the
Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as “Company Inventions.”


 


2.4          Nonassignable
Inventions.  I recognize that, in the
event of a specifically applicable state law, regulation, rule, or public
policy (“Specific Inventions Law”), this Agreement will not be deemed to
require assignment of any invention which qualifies fully for protection under
a Specific Inventions Law by virtue of the fact that any such invention was,
for example, developed entirely on my own time without using the Company’s
equipment, supplies, facilities, or trade secrets and neither related to the
Company’s actual or anticipated business, research or development, nor resulted
from work performed by me for the Company. 
In the absence of a Specific Inventions Law, the preceding sentence will
not apply.


 


2.5          Obligation
to Keep Company Informed.  During the
period of my employment and for six months after the last day of my employment
with the Company, I will promptly disclose to the Company fully and in writing
all Inventions authored, conceived or reduced to practice by me, either alone
or jointly with others.  In


 





















 


addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment.  At the time of each such
disclosure, I will advise the Company in writing of any Inventions that I
believe fully qualify for protection under the provisions of a Specific
Inventions Law; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. 
The Company will keep in confidence and will not use for any purpose or
disclose to third parties without my consent any confidential information
disclosed in writing to the Company pursuant to this Agreement relating to
Inventions that qualify fully for protection under a Specific Inventions
Law.  I will preserve the confidentiality
of any Invention that does not fully qualify for protection under a Specific
Inventions Law.


 


2.6          Government
or Third Party.  I also agree to
assign all my right, title and interest in and to any particular Invention to a
third party, including without limitation the United States, as directed by the
Company.


 


2.7          Works for
Hire.  I acknowledge that all
original works of authorship which are made by me (solely or jointly with
others) within the scope of my employment and which are protectable by
copyright are “works made for hire,” pursuant to United States Copyright Act
(17 U.S.C., Section 101).


 


2.8          Enforcement
of Proprietary Rights.  I will assist
the Company in every proper way to obtain, and from time to time enforce,
United States and foreign Proprietary Rights relating to Company Inventions in
any and all countries.  To that end I
will execute, verify and deliver such documents and perform such other acts
(including appearances as a witness) as the Company may reasonably request for
use in applying for, obtaining, perfecting, evidencing, sustaining and
enforcing such Proprietary Rights and the assignment thereof.  In addition, I will execute, verify and
deliver assignments of such Proprietary Rights to the Company or its
designee.  My obligation to assist the
Company with respect to Proprietary Rights relating to such Company Inventions
in any and all countries shall continue beyond the termination of my
employment, but the Company shall compensate me at a reasonable rate after my
termination for the time actually spent by me at the Company’s request on such
assistance.


 


In the event the
Company is unable for any reason, after reasonable effort, to secure my
signature on any document needed in connection with the actions specified in
the preceding paragraph, I hereby irrevocably designate and appoint the Company
and its duly authorized officers and agents as my agent and attorney in fact,
which appointment is coupled with an interest, to act for and in my behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph with the same
legal force and effect as if executed by me. 
I hereby waive and quitclaim to the Company any and all claims, of any
nature whatsoever, which I now or may hereafter have for infringement of any
Proprietary Rights assigned hereunder to the Company.


 


3.             No Conflicts or Solicitation. I
acknowledge that during my employment I will have access to and knowledge of
Proprietary Information.  I also
acknowledge that during my employment with the Company, I have held and/or will
hold a management or executive position or am, or will be, an assistant to a
manager or executive. To protect the Company’s Proprietary Information, I agree
that during the period of my employment by the Company I will not, without the
Company’s express written consent, engage in any other employment or business
activity directly related to the business in which the Company is now involved
or becomes involved, nor will I engage in any other activities which conflict
with my obligations to the Company.  To
protect the Company’s Proprietary Information, and because of the position in
the Company that I hold, I agree that during my employment with the Company
whether full-time or part-time and for a period of one year after my last day
of employment with the Company, I will not (a) directly or indirectly solicit
or induce any employee of the Company to terminate or negatively alter his or
her relationship with the Company or (b) directly or indirectly solicit the
business of any client or customer of the Company (other than on behalf of the
Company) or (c) directly or indirectly induce any client, customer, supplier,
vendor, consultant or independent contractor of the Company to terminate


 





















 


or negatively alter his,
her or its relationship with the Company. 
I agree that the geographic scope of the non-solicitation should include
the “Restricted Territory” (as defined below).


 


4.             If
any restriction set forth in this Section 4 is found by any court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time or over too great a range of activities or in too broad a geographic area,
it shall be interpreted to extend only over the maximum period of time, range
of activities or geographic area as to which it may be enforceable.


 


5.             Covenant Not to Compete.  I acknowledge that during my employment I
will have access to and knowledge of Proprietary Information.  I also acknowledge that during my employment
with the Company, I have held and/or will hold a management or executive
position or am, or will be, an assistant to a manager or executive.  To protect the Company’s Proprietary Information,
and because of the position in the Company that I may hold, I agree that during
my employment with the Company whether full-time or part-time and for a period
of one year after my last day of employment with the Company, I will not
directly or indirectly engage in (whether as an employee, consultant,
proprietor, partner, director or otherwise), or have any ownership interest in,
or participate in the financing, operation, management or control of, any
person, firm, corporation or business that engages in a “Restricted Business”
in a “Restricted Territory” (as defined below). 
It is agreed that ownership of (i) no more than one percent (1%) of the
outstanding voting stock of a publicly traded corporation, or (ii) any stock I
presently own shall not constitute a violation of this provision.


 


5.1          Reasonable.  I agree and acknowledge that the time
limitation on the restrictions in this paragraph, combined with the geographic
scope, is reasonable.  I also acknowledge
and agree that this paragraph is reasonably necessary for the protection of
Company’s Proprietary Information as defined in paragraph 1.2 herein, that
through my employment I shall receive adequate consideration for any loss of
opportunity associated with the provisions herein, and that these provisions
provide a reasonable way of protecting Company’s business value which will be
imparted to me.  If any restriction set
forth in this Section 5 is found by any court of competent jurisdiction to be
unenforceable because it extends for too long a period of time or over too
great a range of activities or in too broad a geographic area, it shall be
interpreted to extend only over the maximum period of time, range of activities
or geographic area as to which it may be enforceable.


 


5.2          As
used herein, the terms:


 


(i)            “Restricted
Business” shall mean the development or commercialization of radiosensitizers.


 


(ii)           “Restricted
Territory” shall mean any state, county, or locality in the United States in
which the Company conducts business and any other country, city, state,
jurisdiction, or territory in which the Company does business.


 


6.             Records.  I agree to keep and maintain adequate and
current records (in the form of notes, sketches, drawings and in any other form
that may be required by the Company) of all Proprietary Information developed
by me and all Inventions made by me during the period of my employment at the
Company, which records shall be available to and remain the sole property of
the Company at all times.


 


7.             No Conflicting Obligation.  I represent that my performance of all the
terms of this Agreement and as an employee of the Company does not and will not
breach any agreement to keep in confidence information acquired by me in
confidence or in trust prior to my employment by the Company.  I have not entered into, and I agree I will
not enter into, any agreement either written or oral in conflict herewith.


 


8.             Return Of Company Materials.  When I leave the employ of the Company, I
will deliver to the Company any and all drawings, notes, memoranda,
specifications, devices, formulas, and documents, together with all copies
thereof, and any other material containing or disclosing any Company
Inventions, Third Party Information or Proprietary Information of the Company,
unless agreed to by the Company.  I
further agree that any property situated on the Company’s premises and owned by
the Company, including disks and other storage media, filing cabinets or other
work areas, is subject to inspection by Company personnel at any time with or
without notice.


 





















 


9.             Legal And Equitable Remedies.  Because my services are personal and unique
and because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or
other equitable relief, without bond and without prejudice to any other rights
and remedies that the Company may have for a breach of this Agreement.


 


10.          Notices.  Any notices required or permitted hereunder
shall be given to the appropriate party at the address specified below or at
such other address as the party shall specify in writing.  Such notice shall be deemed given upon
personal delivery to the appropriate address or if sent by certified or
registered mail, three days after the date of mailing.


 


11.          Notification Of New Employer.  In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.


 


12.          General Provisions.


 


12.1        Governing
Law; Consent to Personal Jurisdiction and Exclusive Forum.  This Agreement will be governed by and
construed according to the laws of the State of Colorado as such laws are
applied to agreements entered into and to be performed entirely within Colorado
between Colorado residents.  I hereby
expressly understand and consent that my employment is a transaction of
business in the State of Colorado and constitutes the minimum contacts
necessary to make me subject to the personal jurisdiction of the state courts
and federal courts located in the State of Colorado, for any lawsuit filed
against me by Company arising from or related to this Agreement.  I agree and acknowledge that any controversy
arising out of or relating to this Agreement or the breach thereof, or any
claim or action to enforce this Agreement or portion thereof, or any
controversy or claim requiring interpretation of this Agreement must be brought
in a forum located within the State of Colorado.  No such action may be brought in any forum
outside the State of Colorado.  Any
action brought in contravention of this paragraph by one party is subject to
dismissal at any time and at any stage of the proceedings by the other, and no
action taken by the other in defending, counter claiming or appealing shall be
construed as a waiver of this right to immediate dismissal.  A party bringing an action in contravention
of this paragraph shall be liable to the other party for the costs, expenses
and attorney’s fees incurred in successfully dismissing the action or
successfully transferring the action to the state courts and federal courts
located in the State of Colorado.


 


12.2        Severability.  In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect the other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. 
If moreover, any one or more of the provisions contained in this
Agreement shall for any reason be held to be excessively broad as to duration,
geographical scope, activity or subject, it shall be construed by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law as it shall then appear.


 


12.3        Successors
and Assigns.  This Agreement will be
binding upon my heirs, executors, administrators and other legal
representatives and will be for the benefit of the Company, its successors, and
its assigns.


 


12.4        Survival.  The provisions of this Agreement shall
survive the termination of my employment and the assignment of this Agreement
by the Company to any successor in interest or other assignee.


 


12.5        Employment.  I agree and understand that my employment is
at-will which means I or the company each have the right to terminate my
employment at will, with or without advanced notice and with or without cause.  I further agree and understand that nothing
in this Agreement shall confer any right with respect to continuation of
employment by the Company, nor shall it interfere in any way


 





















 


with my right or the Company’s right to terminate my
employment at any time, with or without cause.


 


12.6        Waiver.  No waiver by the Company of any breach of
this Agreement shall be a waiver of any preceding or succeeding breach.  No waiver by the Company of any right under
this Agreement shall be construed as a waiver of any other right.  The Company shall not be required to give
notice to enforce strict adherence to all terms of this Agreement.


 


12.7        Entire
Agreement.  The obligations pursuant
to Sections 1 through 8 (including all subparts) of this Agreement shall apply
to any time during which I was previously employed, or am in the future
employed, by the Company as a consultant if no other agreement governs
nondisclosure and assignment of inventions during such period.  This Agreement is the final, complete and
exclusive agreement of the parties with respect to the subject matter hereof
and supersedes and merges all prior discussions between us.  No modification of or amendment to this
Agreement, nor any waiver of any rights under this Agreement, will be effective
unless in writing and signed by the party to be charged.  Any subsequent change or changes in my
duties, salary or compensation will not affect the validity or scope of this
Agreement.


 


This Agreement shall be effective as of October     ,
2004.


 


I have read this
Agreement carefully and understand its terms. 
I have completely filled out exhibit a
to this Agreement.


 


 


	
  Dated:

  	
   

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Marc H. Graboyes

  
	
   

  
	
   

  
	
  Accepted and agreed
  to:

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Michael E. Hart

  
	
  President and Chief Executive Officer

  
	
  Allos Therapeutics, Inc.

  
				



 





















 


EXHIBIT A


 


 


	
  TO:

  	
  Allos Therapeutics, Inc.

  
	
   

  	
   

  
	
  FROM:

  	
  Marc H. Graboyes

  
	
   

  	
   

  
	
  DATE:

  	
   

  	
   

  
	
   

  	
   

  
	
  SUBJECT:

  	
  Previous Inventions

  



 


1.             Except
as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by Allos Therapeutics, Inc. that have been made or conceived or
first reduced to practice by me alone or jointly with others prior to my
engagement by the Company:


 


o            No inventions or
improvements.


 


o            See below:


 


 


o            Additional sheets
attached.


 


 


2.             Due
to a prior confidentiality agreement, I cannot complete the disclosure under
Section 1 above with respect to inventions or improvements generally
listed below, the proprietary rights and duty of confidentiality with respect
to which I owe to the following party(ies):


 


	
   

  	
   

  	
  Invention or Improvement

  	
   

  	
  Party(ies)

  	
   

  	
  Relationship

  
	
  1.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


 


 ̈            Additional sheets
attached.


 





















 


Exhibit B to Employment Agreement


 


RELEASE
AGREEMENT


 


I understand that my
position with Allos Therapeutics, Inc. (the “Company”) terminated effective                       ,
             
(the “Separation Date”).  The Company has
agreed that if I choose to sign this Release, the Company will pay me certain
severance or consulting benefits pursuant to the terms of the Employment
Agreement (the “Agreement”) between myself and the Company, and any agreements
incorporated therein by reference.  I
understand that I am not entitled to such benefits unless I sign this Release
and it becomes fully effective.  I
understand that, regardless of whether I sign this Release, the Company will
pay me all of my accrued salary and vacation through the Separation Date, to
which I am entitled by law.


 


In consideration for the
severance benefits I am receiving under the Agreement, I hereby release the
Company and its officers, directors, agents, attorneys, employees,
shareholders, parents, subsidiaries, and affiliates from any and all claims,
liabilities, demands, causes of action, attorneys’ fees, damages, or
obligations of every kind and nature, whether they are now known or unknown,
arising at any time prior to the date I sign this Release.  This general release includes, but is not
limited to:  all federal and state
statutory and common law claims, claims related to my employment or the
termination of my employment or related to breach of contract, tort, wrongful
termination, discrimination, wages or benefits, or claims for any form of
equity or compensation.  Notwithstanding
the release in the preceding sentence, I am not releasing any right of
indemnification I may have for any liabilities arising from my actions within
the course and scope of my employment with the Company.


 


If I am forty (40) years
of age or older as of the Separation Date, I acknowledge that I am knowingly
and voluntarily waiving and releasing any rights I may have under the federal
Age Discrimination in Employment Act of 1967, as amended (“ADEA”).  I also acknowledge that the consideration
given for the waiver in the above paragraph is in addition to anything of value
to which I was already entitled.  I have
been advised by this writing, as required by the ADEA that:  (a) my waiver and release do not apply to any
claims that may arise after my signing of this Release; (b) I should consult
with an attorney prior to executing this Release; (c) I have twenty-one (21)
days within which to consider this Release (although I may choose to
voluntarily execute this Release earlier); (d) I have seven (7) days following
the execution of this release to revoke the Release; and (e) this Release will
not be effective until the eighth day after this Release has been signed both
by me and by the Company (“Effective Date”).


 


	
  Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Allos
  Therapeutics Inc.

  	
   

  	
  Marc H. Graboyes

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date: