EXHIBIT 10.20
ALLOS THERAPEUTICS, INC.
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") is made
and entered into as of December 13, 2007, by and among Allos Therapeutics, Inc.,
a Delaware corporation (the "Company"), and Paul L. Berns ("Employee").
W I T N E S S E T H:
WHEREAS, the Company wishes to continue to employ Employee and to assure itself
of the continued services of Employee on the terms set forth herein;
WHEREAS, Employee wishes to be so employed under the terms set forth herein;
WHEREAS, Employee and the Company entered into the original Employment Agreement
dated March 9, 2006 (the "Original Agreement");
WHEREAS, Employee and the Company are parties to the Amended and Restated
Employment Agreement dated December 12, 2006 (the "First Amended Agreement"),
pursuant to which the Company and Employee amended and restated the Original
Agreement to reflect their final agreement with respect to reimbursement of
commuting and temporary living expenses;
WHEREAS, the Company and Employee now desire to amend and restate the First
Amended Agreement to, among other things, reflect certain changes such that the
Employee will not be subject to adverse tax consequences under Section 409A of
the Code (as defined below); and
WHEREAS, the Company and Employee intend that this Agreement shall supersede and
replace the First Amended Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the Company and Employee hereby
agree as follows:
SECTION 1.
DEFINITIONS.
(A)
"ACCRUED OBLIGATIONS" SHALL MEAN (I) ANY BASE SALARY AND ANNUAL
BONUS EARNED BUT UNPAID PRIOR TO THE DATE OF A TERMINATION OF EMPLOYEE'S
EMPLOYMENT WITH THE COMPANY PURSUANT TO SECTION 8 BELOW, (II) ALL ACCRUED BUT
UNUSED PERSONAL TIME, (III) ANY UNREIMBURSED BUSINESS EXPENSES PURSUANT TO
SECTION 7 BELOW AND (IV) OTHER EMPLOYEE BENEFITS TO WHICH EMPLOYEE IS ENTITLED
UPON TERMINATION OF EMPLOYMENT IN ACCORDANCE WITH THE TERMS OF THE PLANS AND
PROGRAMS OF THE COMPANY.
(B)
"AFFILIATE" SHALL MEAN, AS TO ANY PERSON, ANY OTHER PERSON THAT
CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, SUCH PERSON.
(C)
"ANNUAL BONUS" SHALL HAVE THE MEANING SET FORTH IN
SECTION 4(B) BELOW.
(D)
"BASE SALARY" SHALL MEAN THE SALARY, AND ANY INCREASE THEREOF,
PROVIDED FOR IN SECTION 4(A) BELOW.
(E)
"BOARD" SHALL MEAN THE BOARD OF DIRECTORS OF THE COMPANY.
(F)
"CAUSE" SHALL MEAN THE OCCURRENCE OF ONE OR MORE OF THE
FOLLOWING: (I) EMPLOYEE'S CONVICTION OF A FELONY INVOLVING MORAL TURPITUDE OR
DISHONESTY; (II) EMPLOYEE'S KNOWING AND ACTIVE PARTICIPATION IN A FRAUD OR
SIGNIFICANT ACT OF DISHONESTY AGAINST THE COMPANY; (III) EMPLOYEE'S INTENTIONAL
AND MATERIAL DAMAGE TO THE COMPANY'S PROPERTY OR (IV) EMPLOYEE'S MATERIAL BREACH
OF THIS AGREEMENT, THE COMPANY'S WRITTEN POLICIES, OR THE PROPRIETARY
INFORMATION AGREEMENT THAT IS DEMONSTRABLY WILLFUL AND DELIBERATE ON EMPLOYEE'S
PART IS COMMITTED IN BAD FAITH OR WITHOUT REASONABLE BELIEF THAT SUCH BREACH IS
IN THE BEST INTEREST OF