Exhibit 10.1
ALLOS THERAPEUTICS, INC.
EMPLOYMENT AGREEMENT
DAVID CLARK
THIS EMPLOYMENT
AGREEMENT (the “
Agreement ”) is entered into effective as of
June 25, 2009, by and between ALLOS THERAPEUTICS, INC.,
(the “ Company ”), and DAVID CLARK
(“ Employee ”) (collectively, the “
Parties ”).
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;
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 Employee’s
employment:
1.
EMPLOYMENT. The
Company hereby agrees to employ Employee as Vice President,
Finance and Employee hereby accepts such employment upon the
terms and conditions set forth herein as of the date first written
above. Employee commenced employment with the Company on
April 4, 2004.
2.
AT-WILL EMPLOYMENT. It is understood and agreed by the
Company and Employee that this Agreement does not contain any
promise or representation concerning the duration of
Employee’s employment with the Company. Employee specifically
acknowledges that his employment with the Company is at-will and
may be altered or terminated by either Employee or the Company at
any time, with or without cause and/or with or without
notice. The nature, terms or conditions of Employee’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 Employee 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 Employee and the Chairman of the Board of
Directors.
3.
DUTIES. Employee
shall render full-time services to the Company as its Vice
President, Finance . Employee shall report to the
Company’s Chief Executive Officer. Employee shall
devote his best efforts and his full business time, skill and
attention to the performance of his duties on behalf of the
Company. Of course, the Company reserves the right to modify
Employee’s job duties and responsibilities as
necessary.
4.
POLICIES AND PROCEDURES. Employee agrees that he is subject to and
will comply with the policies and procedures of the Company, as
such policies and procedures may
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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. Employee further agrees and
acknowledges that any written or oral policies and procedures of
the Company do not constitute contracts between the Company and
Employee.
5.
COMPENSATION. For
all services rendered and to be rendered hereunder, the Company
agrees to pay to the Employee, and the Employee agrees to accept a
base salary of $215,250 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 Employee.
The Board of Directors may adjust the Employee’s compensation
from time to time in its sole and complete discretion.
6.
BONUS. Employee
will be eligible to participate in the Company’s Corporate
Bonus Plan, pursuant to which Employee will be eligible for an
annual bonus award to be determined in accordance with the terms of
the plan (“ Annual Bonus ”). For
2009, Employee’s target bonus award under the Corporate Bonus
Plan shall equal 25% of Employee’s actual base salary earned
in 2009, weighted 60% to the achievement of the Company’s
corporate objectives and 40% to the achievement of individual
objectives approved by the Compensation Committee of the
Company’s Board of Directors, in consultation with the Chief
Executive Officer. A copy of the Corporate Bonus Plan has
been provided to Employee.
7.
Intentionally omitted.
8.
OTHER BENEFITS. While employed by the Company as provided
herein:
(a)
Employee and Employee Benefits. The Employee shall be entitled to all
benefits to which other 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 employees. The Company reserves the right to
alter and amend the benefits received by Employee from time to time
at the Company’s discretion.
(b)
Out-of-Pocket Expense Reimbursement. The Employee 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.
(c)
Personal Time Off.
The Employee shall be entitled to personal time off and sick leave
according to the Company’s benefits package.
9.
PROPRIETARY AND OTHER OBLIGATIONS. Employee has signed and agrees to comply
with the Company’s standard form of Employee Confidentiality
and Inventions Assignment Agreement (“ Confidentiality
Agreement ”) as a condition of his continued employment
by the Company.
10.
TERMINATION.
Employee and the Company each acknowledge that either party has the
right to terminate Employee’s employment with the Company at
any time for any reason whatsoever, with or without cause or
advance notice pursuant to the following:
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(a)
Termination by Death or Disability. Subject to applicable state or federal
law, in the event Employee shall die during the period of his
employment hereunder or become permanently disabled, as evidenced
by notice to the Company and Employee’s inability to carry
out his job responsibilities for a continuous period of more than
three months, Employee’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, Employee has failed to carry out his job
responsibilities for three months, except that the Company shall
pay Employee’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 and/or
other stock awards shall cease on the date of
termination.
(b)
Voluntary Resignation by Employee. In the event Employee 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 Employee 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 and/or
other stock awards shall cease on the date of
termination.
(c)
Termination for Just Cause. In the event the Employee 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 Employee of written notice of such
termination (the “ date of termination ” for
purposes of this paragraph 10(c)), except that the Company
shall pay Employee 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 and/or
other stock awards 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 Employee’s employment with the Company at any time
without Just Cause. In the event Employee is terminated by
the Company without Just Cause or Employee resigns for Good Reason
(other than in connection with a Change in Control (as defined
below)), and upon the execution of a full general release by
Employee (“ Release ”, in the form attached
hereto as Exhibit A ), releasing all claims
known or unknown that Employee may have against the Company as of
the date Employee signs such release, and upon the written
acknowledgment of his continuing obligations under the
Confidentiality Agreement, Employee shall be entitled to receive
the following severance benefits: (i) continuation of
Employee’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 Employee’s group health
insurance COBRA continuation coverage, including coverage for
Employee’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 Employee’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 Employee’s eligibility for comparable group
health insurance provided by a new employer of
Employee.
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Vesting of any unvested stock options or other
stock awards shall cease on the date of termination.
(e)
Change in Control Severance Benefits. In the event that the Company (or any
surviving or acquiring corporation) terminates Employee’s
employment without Just Cause or Employee resigns for Good Reason
within one (1) month prior to or twelve (12) months following
the effective date of a Change in Control (“ Change in
Control Termination ”), and upon the execution of a
Release, Employee shall be entitled to receive the following Change
in Control severance benefits: (i) a lump-sum cash
payment in an amount equal to (A) Employee’s annual base
salary then in effect, plus (B) the greater of
(1) Employee’s annualized target bonus award for the
year in which Employee’s employment terminates or
(2) the Annual Bonus amount paid to Employee in the
immediately preceding year; (ii) payment of any accrued but
unused vacation and sick leave; (iii) payment of
Employee’s target bonus award for the year in which
Employee’s employment terminates, prorated through the date
of the Change in Control Termination; (iv) the Company (or any
surviving or acquiring corporation) shall pay the premiums of
Employee’s group health insurance COBRA continuation
coverage, including coverage for Employee’s eligible
dependents, for a maximum period of twelve (12) months following a
Change in Control Termination; and (v) the Company (or any
surviving or acquiring corporation) shall pay the costs of
outplacement assistance services from an outplacement agency
selected by Employee for a period of six (6) months following
a Change in Control Termination, up to maximum of $7,500 in
aggregate; provided, however, that (a) the Company (or
any surviving or acquiring corporation) shall pay premiums for
Employee’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 Employee’s
eligibility for comparable group health insurance provided by a new
employer of Employee. Employee agrees that the
Company’s (or any surviving or acquiring corporation’s)
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
Employee’s coverage by a h
