ALLOS THERAPEUTICS, INC. SEVERANCE BENEFIT PLAN Adopted: January 16, 2001 Amended and Restated: December 11, 2007

EX-10.3 4 a09-6516_1ex10d3.htm EX-10.3

EXHIBIT 10.3

ALLOS THERAPEUTICS, INC.

SEVERANCE BENEFIT PLAN

Adopted: January 16, 2001

Amended and Restated: December 11, 2007

1. INTRODUCTION.

The purpose of this Severance Benefit Plan (the “Plan”) is to provide for the payment of severance benefits to certain eligible employees of Allos Therapeutics, Inc. (the “Company”) whose employment with the Company is involuntarily terminated and who suffer a period of unemployment as a result of such involuntary termination. Except as set forth herein with respect to individual separation agreements, this Plan shall supersede any severance benefit plan, policy or practice previously maintained by the Company. This Plan is intended to be a welfare benefit plan described under Section 3(1) of the Employee Retirement Income Security Act of 1974 (“ERISA”). For the purposes of this Plan, “Severance Benefit Schedule” means the applicable severance benefit schedule(s) approved from time to time by the Company’s Board of Directors and attached hereto.

2. ELIGIBILITY FOR BENEFITS.

(a) General Rules. Subject to the requirements set forth in this Section, the Company will grant severance benefits under the Plan to Eligible Employees.

(i) “Eligible Employees” are all full-time employees whose employment with the Company is involuntarily terminated (including a termination by the employee for “Good Reason,” as defined in the applicable Severance Benefit Schedule) due to a group termination, the closure or reorganization of a facility or operation, a change in ownership, or such other event, but only as the Company specifically identifies such an event in the applicable Severance Benefit Schedule as a termination of employment subject to the provisions of this Plan.

The determination as to who are Eligible Employees and whether a termination of employment event for purposes of this Plan has occurred and whether the provisions of this Plan shall apply shall be made by the Company in its sole discretion. For purposes of this Plan, full-time employees include those regular hire employees who are regularly scheduled to work forty (40) hours or more per week. Regular hire employees are those employees who are classified as employees under Section 3121(d) of the Internal Revenue Code of 1986, as amended (the “Code”), and who are paid on the United States payroll of the Company; provided, however, temporary employees, leased employees, independent contractors, consultants, loaned employees, interns and co-op employees, as classified on the Company’s personnel records, are not eligible to receive any benefits under the Plan.

(ii) In order to be eligible to receive benefits under the Plan, an Eligible Employee must remain on the job until his or her date of termination as scheduled by the Company or until his or her termination for “Good Reason” (as defined in the applicable

Severance Benefit Schedule), if termination for “Good Reason” is an applicable payment event under such Severance Benefit Schedule.

(iii) In order to be eligible to receive benefits under the Plan, an Eligible Employee must execute a general waiver and release on the form provided by the Company; provided, however, that the Company, in its sole discretion, may, from time to time, elect to provide a basic level of severance benefits that an Eligible Employee may receive without the execution of such a general waiver and release, and to provide enhanced severance benefits that an Eligible Employee may receive only if the Eligible Employee executes a general waiver and release. All waivers and releases must be on forms provided by the Company.

(b) Exceptions. An employee who otherwise is an Eligible Employee will not receive benefits under the Plan in any of the following circumstances:

(i) The employee has executed an individually negotiated employment contract or agreement with the Company relating to severance benefits that is in effect on his or her termination date. Such employee’s severance benefit, if any, shall be governed by the terms of such individually negotiated employment contract or agreement.

(ii) The employee’s employment terminates for any reason other than a reason specified in Section 2(a)(i).

(iii) The employee voluntarily terminates employment with the Company. Voluntary terminations include, but are not limited to, resignation, retirement, or failure to return from a leave of absence on the scheduled date. Voluntary terminations also include job abandonment and all other voluntary terminations as described in the Employee Handbook in effect at the time of the employee’s termination of employment. Voluntary terminations do not include a termination for “Good Reason” if such a “Good Reason” termination is an applicable payment event under an applicable Severance Benefit Schedule.

(iv) The employee voluntarily or involuntarily terminates employment with the Company in order to accept employment with another entity that is wholly or partly owned (directly or indirectly) by the Company or the parent or other affiliate of the Company.

(v) The employee is offered immediate reemployment following a change in ownership of the Company by the successor to the Company in a substantially equal to or greater position at a pay equal to or greater than the employee’s pay at the time of such event. For purposes of this provision, “immediate reemployment” means that the employee’s employment with the successor to the Company results in uninterrupted employment such that the employee does not suffer a lapse in pay as a result of the change in ownership of the Company.

3. AMOUNT OF BENEFIT.

(a) Severance benefits payable under this Plan shall be as specified on the applicable Severance Benefit Schedule, which shall be determined by the Company and may be amended by the Company from time to time.

(b) Notwithstanding any other provision of the Plan to the contrary, the total severance payments to any Eligible Employee under this Plan shall not exceed two times the Eligible Employee’s annual compensation earned during the calendar year immediately preceding the Eligible Employee’s termination of employment (calculated on an annualized basis).

(c) Notwithstanding any other provision of the Plan to the contrary, any benefits payable to an Eligible Employee under this Plan shall be offset, to the maximum extent permitted by law, by any severance benefits payable by the Company to such individual under any other arrangement covering the individual.

4. TIME OF PAYMENT AND FORM OF BENEFIT; INDEBTEDNESS.

(a) The Company reserves the right to determine whether the severance benefits under the Plan will be paid in a single sum or in installments and to choose the timing of such payments, provided, however, that all payments under this Plan will be completed within twenty-four (24) months of an Eligible Employee’s termination date. In no event shall payment of any Plan benefit be made prior to the Eligible Employee’s termination date.

(b) If a terminating employee is indebted to the Company at his or her termination date, the Company reserves the right to offset any severance payments under the Plan by the amount of such indebtedness.

5. REEMPLOYMENT.

In the event of an Eligible Employee’s reemployment by the Company, or an affiliate of the Company, during the Severance Period (as defined in the next paragraph), such Eligible Employee will be required to repay to the Company a prorated portion of the total cash benefits received by the Eligible Employee under this Plan. The prorated portion of such cash benefits that must be repaid by the Eligible Employee is an amount equal to such cash benefits received under this Plan by the Eligible Employee upon his or her termination of employment multiplied by a fraction, the numerator of which is the number of weeks in the Severance Period reduced by the number of weeks between the Eligible Employee’s termination of employment date and the Eligible Employee’s rehire date, and the denominator of which is the Eligible Employee’s Severance Period. In determining the numerator for purposes of such fraction, if the numerator is not a whole number, then the numerator shall be rounded down to the next smallest whole number of weeks.

For purposes of this Section 5 and Section 8, the “Severance Period” is the period equal to the number of weeks of severance pay received by the Eligible Employee under this Plan. In the event that the Severance Period includes a fractional week, the Severance Period shall be rounded to the nearest whole number.

6. RIGHT TO INTERPRET PLAN; AMEND AND TERMINATE; OTHER ARRANGEMENTS.

(a) Exclusive Discretion. The Plan Administrator shall have the exclusive discretion and authority to establish rules, forms, and procedures for the administration of the Plan, and to construe and interpret the Plan and to decide any and all questions of fact, interpretation,

definition, computation or administration arising in connection with the operation of the Plan, including, but not limited to, the eligibility to participate in the Plan, applicability of the Plan to a specific termination of employment event, and amount of benefits paid under the Plan. The rules, interpretations, computations and other actions of the Plan Administrator shall be binding and conclusive on all persons.

(b) Amendment or Termination. The Company also reserves the right to amend or discontinue this Plan or the benefits provided hereunder at any time; provided, however, that no such amendment or termination shall affect the right to any unpaid benefit of any Eligible Employee whose termination date has occurred prior to amendment or termination of the Plan.

(c) Other Severance Arrangements. The Company reserves the right to make other arrangements regarding severance benefits in special circumstances. The foregoing notwithstanding, in no event shall any individual receive from the Company any severance benefit greater than the benefit provided under Section 3, unless such individual executes, as a condition upon the receipt of such additional benefit, a waiver and release of any and all claims that such individual may have against the Company, on the form provided by the Company.

7. CONTINUATION OF EMPLOYMENT BENEFITS.

(a) COBRA Continuation. Each Eligible Employee who is enrolled in a health, dental or vision plan sponsored by the Company may be eligible to continue coverage under such health, dental or vision plan (or to convert to an individual policy) pursuant to the requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The Company will notify the individual of any such right to continue health coverage.

(b) Other Employee Benefits. Unless otherwise specified by the Company in the applicable Severance Benefit Schedule, all non-health benefits (such as life insurance and disability coverage) terminate as of the employee’s last day of active, physically present on the job, employment with the Company, as determined by the Company (except to the extent that any conversion privilege is available thereunder).

8. OUTPLACEMENT BENEFITS.

The Company, in its sole discretion, shall determine from time to time the outplacement benefits, if any, available for Eligible Employees under this Plan.

9. CLAIMS, INQUIRIES, AND APPEALS.

(a) Applications for Benefits and Inquiries. Any application for benefits, inquiries about the Plan or inquiries about present or future rights under the Plan must be submitted to the Plan Administrator in writing. The Plan Administrator is:

Allos Therapeutics, Inc.

Attention: Human Resources

11080 CirclePoint Road, Suite 200

Westminster, CO 80020

(b) Denial of Claims. In the event that any application for benefits is denied in whole or in part, the Plan Administrator must notify the applicant, in writing, of the denial of the application, and of the applicant’s right to review the denial. The written notice of denial will be set forth in a manner designed to be understood by the employee, and will include specific reasons for the denial, specific references to the Plan provision upon which the denial is based, a description of any information or material that the Plan Administrator needs to complete the review and an explanation of the Plan’s review procedure.

This written notice will be given to the employee within 90 days after the Plan Administrator receives the application, unless special circumstances require an extension of time, in which case, the Plan Administrator has up to an additional 90 days for processing the application. If an extension of time for processing is required, written notice of the extension will be furnished to the applicant before the end of the initial 90-day period.

This notice of extension will describe the special circumstances necessitating the additional time and the date by which the Plan Administrator is to render its decision on the application. If written notice of denial of the application for benefits is not furnished within the specified time, the application shall be deemed to be denied. The applicant will then be permitted to appeal the denial in accordance with the Review Procedure described below.

(c) Request for a Review. Any person (or that person’s authorized representative) for whom an application for benefits is denied (or deemed denied), in whole or in part, may appeal the denial by submitting a request for a review to the Plan Administrator within 60 days after the application is denied (or deemed denied). The Plan Administrator will give the applicant (or his or her representative) an opportunity to review pertinent documents in preparing a request for a review. A request for a review shall be in writing and shall be addressed to:

Allos Therapeutics, Inc.

Attention: Human Resources

11080 CirclePoint Road, Suite 200

Westminster, CO 80020

A request for review must set forth all of the grounds on which it is based, all facts in support of the request and any other matters that the applicant feels are pertinent. The Plan Administrator may require the applicant to submit additional facts, documents or other material as it may find necessary or appropriate in making its review.

(d) Decision on Review. The Plan Administrator will act on each request for review within 60 days after receipt of the request, unless special circumstances require an extension of time (not to exceed an additional 60 days), for processing the request for a review. If an extension for review is required, written notice of the extension will be furnished to the applicant within the initial 60-day period. The Plan Administrator will give prompt, written notice of its decision to the applicant. In the event that the Plan Administrator confirms the denial of the application for benefits in whole or in part, the notice will outline, in a manner calculated to be understood by the applicant, the specific Plan provisions upon which the decision is based. If written notice of the Plan Administrator’s decision is not given to the applicant within the time prescribed in this Subsection (d), the application will be deemed denied on review.

(e) Rules and Procedures. The Plan Administrator will establish rules and procedures, consistent with the Plan and with ERISA, as necessary and appropriate in carrying out its responsibilities in reviewing benefit claims. The Plan Administrator may require an applicant who wishes to submit additional information in connection with an appeal from the denial (or deemed denial) of benefits to do so at the applicant’s own expense.

(f) Exhaustion of Remedies. No legal action for benefits under the Plan may be brought until the claimant (i) has submitted a written application for benefits in accordance with the procedures described by subparagraph 9(a) above, (ii) has been notified by the Plan Administrator that the application is denied (or the application is deemed denied due to the Plan Administrator’s failure to act on it within the established time period), (iii) has filed a written request for a review of the application in accordance with the appeal procedure described in subparagraph 9(c) above and (iv) has been notified in writing that the Plan Administrator has denied the appeal (or the appeal is deemed to be denied due to the Plan Administrator’s failure to take any action on the claim within the time prescribed by subparagraph 9(d) above).

10. OTHER PLAN INFORMATION.

(a) Employer and Plan Identification Numbers. The Employer Identification Number assigned to the Company (which is the “Plan Sponsor” as that term is used in ERISA) by the Internal Revenue Service is 54-1655029. The Plan Number assigned to the Plan by the Plan Sponsor pursuant to the instructions of the Internal Revenue Service is 502.

(b) Ending Date for Plan’s Fiscal Year. The date of the end of the fiscal year for the purpose of maintaining the Plan’s records is December 31.

(c) Agent for the Service of Legal Process. The agent for the service of legal process with respect to the Plan is Allos Therapeutics, Inc., 11080 CirclePoint Road, Suite 200, Westminster, CO 80020

(d) Plan Sponsor and Administrator. The “Plan Sponsor” and the “Plan Administrator” of the Plan is Allos Therapeutics, Inc., 11080 CirclePoint Road, Suite 200, Westminster, CO 80020

(e) Telephone Number. The Plan Sponsor’s and Plan Administrator’s telephone number is ###-###-####. The Plan Administrator is the named fiduciary charged with the responsibility for administering the Plan.

11. STATEMENT OF ERISA RIGHTS.

Participants in this Plan (which is a welfare benefit plan sponsored by Allos Therapeutics, Inc.) are entitled to certain rights and protections under ERISA. If you are an Eligible Employee, you are considered a participant in the Plan and, under ERISA, you are entitled to:

(a) Examine, without charge, at the Plan Administrator’s office and at other specified locations, such as work sites, all Plan documents and copies of all documents filed by the Plan with the U.S. Department of Labor, such as detailed annual reports;

(b) Obtain copies of all Plan documents and Plan information upon written request to the Plan Administrator. The Administrator may make a reasonable charge for the copies;

(c) Receive a summary of the Plan’s annual financial report, in the case of a plan which is required to file an annual financial report with the Department of Labor. (Generally, all pension plans and welfare plans with 100 or more participants must file these annual reports.)

In addition to creating rights for Plan participants, ERISA imposes duties upon the people responsible for the operation of the employee benefit plan. The people who operate the Plan, called “fiduciaries” of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries.

No one, including your employer or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a Plan benefit or exercising your rights under ERISA. If your claim for a Plan benefit is denied in whole or in part, you must receive a written explanation of the reason for the denial. You have the right to have the Plan review and reconsider your claim.

Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request materials from the Plan and do not receive them within 30 days, you may file suit in a federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator. If you have a claim for benefits that is denied or ignored, in whole or in part, you may file suit in a state or federal court. If it should happen that the Plan fiduciaries misuse the Plan’s money, or if you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in a federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.

If you have any questions about the Plan, you should contact the Plan Administrator. If you have any questions about your rights under ERISA, you should contact the nearest office of the Pension and Welfare Benefits Administration, U.S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Pension and Welfare Benefits Administration, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210.

12. NO IMPLIED EMPLOYMENT CONTRACT.

The Plan shall not be deemed (i) to give any employee or other person any right to be retained in the employ of the Company nor (ii) to interfere with the right of the Company to discharge any employee or other person at any time and for any reason, which right is hereby reserved.

13. LEGAL CONSTRUCTION.

This Plan is intended to be governed by and shall be construed in accordance with the Employee Retirement Income Security Act of 1974 (“ERISA”) and, to the extent not preempted by ERISA, the laws of the State of Colorado.

14. BASIS OF PAYMENTS TO AND FROM PLAN.

All benefits under the Plan shall be paid by the Company. The Plan shall be unfunded, and benefits hereunder shall be paid only from the general assets of the Company.

15. CODE SECTION 409A COMPLIANCE.

To the extent any payments or benefits pursuant to the Plan (a) are paid from the date of termination of Eligible Employee’s employment through March 15 of the calendar year following such termination, such severance benefits are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations and thus payable pursuant to the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations; (b) are paid following said March 15, such severance benefits are intended to constitute separate payments for purposes of Section 1.409A-2(b)(2) of the Treasury Regulations made upon an involuntary separation from service and payable pursuant to Section 1.409A-1(b)(9)(iii) of the Treasury Regulations, to the maximum extent permitted by said provision, and (c) are in excess of the amounts specified in clauses (a) and (b) of this paragraph, shall (unless otherwise exempt under Treasury Regulations) be considered separate payments subject to the distribution requirements of Section 409A(a)(2)(A) of the Code, including, without limitation, the requirement of Section 409A(a)(2)(B)(i) of the Code that payments or benefits be delayed until 6 months after Eligible Employee’s separation from service if Eligible Employee is a “specified employee” within the meaning of the aforesaid section of the Code at the time of such separation from service. In the event that a 6-month delay of any such separation payments or benefits is required, on the first regularly scheduled pay date following the conclusion of the delay period the Eligible Employee shall receive a lump sum payment or benefit in an amount equal to the separation payments and benefits that were so delayed, and any remaining separation payments or benefits shall be paid on the same basis and at the same time as otherwise specified pursuant to the Plan (subject to applicable tax withholdings and deductions).