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.
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(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,
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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 als
