As filed
with the Securities and Exchange Commission on June 24, 2008
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALLOS
THERAPEUTICS, INC.
(Exact name of
registrant as specified in its charter)
Delaware
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54-1655029
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(State of Incorporation)
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(I.R.S. Employer
Identification No.)
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11080
CirclePoint Road, Suite 200
Westminster,
Colorado 80020
(Address of
principal executive offices)
2008 Equity
Incentive Plan
(Full title of the
plan)
Paul L.
Berns
President
and Chief Executive Officer
Allos
Therapeutics, Inc.
11080
CirclePoint Road, Suite 200
Westminster,
Colorado 80020
(303)
426-6262
(Name, address,
including zip code, and telephone number, including area code, of agent for
service)
Copies
to:
James
C. T. Linfield, Esq.
Brent D.
Fassett, Esq.
COOLEY GODWARD
KRONISH LLP
380 Interlocken
Crescent, Suite 900
Broomfield,
Colorado 80021
(720) 566-4000
Indicate by check
mark whether the registrant is a large accelerated filer, an accelerated filer,
a non-accelerated filer, or a smaller reporting company. See definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2
of the Exchange Act. (Check one):
Large
accelerated filer
o
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Accelerated
filer
x
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Non-accelerated
filer
o
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Smaller
reporting company
o
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(Do not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount to be Registered (1)
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Proposed Maximum
Offering
Price per Share (3)
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Proposed Maximum
Aggregate
Offering Price (3)
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Amount of
Registration Fee
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2008 Equity Incentive Plan
Common Stock (par value $0.001 per
share), including related rights to purchase Series A Junior
Participating Preferred Stock
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12,550,843 shares (2)
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$5.17 - $6.55
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$72,463,113.79
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$2,847.80
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(1)
Pursuant to Rule 416(a), this Registration
Statement shall also cover any additional shares of Registrants Common Stock
that become issuable under the plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without receipt
of consideration that increases the number of outstanding shares of Registrants
Common Stock.
(2)
Represents 12,550,843 shares of Common Stock reserved
for future grant under the Allos Therapeutics, Inc. 2008 Equity Incentive
Plan (the 2008 Plan), which number consists of: (i) 7,036,561 shares
reserved for issuance upon the exercise of outstanding options under the 2008
Plan (the Outstanding Options) and (ii) 5,514,282 shares of Common Stock
available for future issuance. The 2008
Plan is the successor to and continuation of the Companys 2006 Inducement
Award Plan, 2002 Broad Based Equity Incentive Plan and 2000 Stock Incentive
Compensation Plan (collectively, the Prior Plans) and the outstanding options
referenced in the preceding sentence refer to options granted under the Prior
Plans that are deemed to be options under the 2008 Plan following the adoption
of the 2008 Plan by the Registrants stockholders on June 24, 2008.
(3)
Estimated solely
for the purpose of calculating the registration fee pursuant to Rule 457(c) and
(h)(1) under the Securities Act of 1933, as amended (the Securities Act). The proposed maximum offering price per share
and proposed aggregate offering price are based upon (i) a weighted
average exercise price of $5.17 for the Outstanding Options and (ii) for
the 5,514,282 shares available for future issuance, the average of the high and
low prices of the Registrants Common Stock as reported on the Nasdaq Global
Market on June 19, 2008.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Allos Therapeutics, Inc. (the Company)
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a)
The Companys Annual Report
on Form 10-K for the fiscal year ended December 31, 2007.
(b)
The Companys Quarterly
Report on Form 10-Q for the period ended March 31, 2008.
(c)
The Companys Current
Reports on Form 8-K filed January 2, 2008, January 7, 2008, January 29,
2008, February 29, 2008, February 29, 2008, March 14, 2008, April 23,
2008, May 15, 2008, May 23, 2008 and June 20, 2008.
(d)
The description of the
Companys Common Stock which is contained in a registration statement on Form 8-A
(File No. 000-29815) filed on March 6, 2000 under the Securities Exchange
Act of 1934, as amended (the Exchange Act), including any amendment or report
filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a part
of this registration statement from the date of the filing of such reports and
documents.
DESCRIPTION
OF SECURITIES
Not applicable.
INTERESTS
OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
Under Section 145
of the Delaware General Corporation Law, the Company has broad powers to
indemnify its directors and officers against liabilities they may incur in such
capacities, including liabilities under the Securities Act. The Companys Amended and Restated
Certificate of Incorporation, as amended, limits the liability of directors to
the maximum extent permitted by Delaware law. Delaware law provides that
directors of a corporation will not be personally liable for monetary damages
for breach of their fiduciary duties as directors except liability for breach
of their duty of loyalty to the corporation or its stockholders, acts or omissions
not in good faith or which involve intentional misconduct or a knowing
violation of law, unlawful payments of dividends or unlawful stock repurchases
or redemptions, or any transaction from which the director derived an improper
personal benefit. Such limitation of liability does not apply to liabilities
arising under the federal or state securities laws and does not affect the
availability of equitable remedies such as injunctive relief or rescission.
The Companys
Bylaws provide that it shall indemnify its directors, officers, employees and
other agents to the fullest extent permitted by law. The Company believes that
indemnification under its Bylaws covers at least negligence and gross negligence on the part
of indemnified parties. The Companys Bylaws also permit it to secure insurance
on behalf of any officer, director, employee or other agent for any liability
arising out of his or her actions in such capacity, regardless of whether the
Bylaws permit such indemnification.
The Company has
entered into agreements to indemnify its directors and executive officers, in
addition to the indemnification provided for in its Bylaws. These agreements,
among other things, indemnify the Companys directors and executive officers
for certain expenses including attorneys fees, judgments, fines and settlement
amounts incurred by any such person in any action or proceeding, services as a
director, officer, employee, agent or fiduciary of the Company, any of its
subsidiaries or any other company or enterprise to which the person provides
2
services at the
Companys request. The Company believes
that these provisions and agreements are necessary to attract and retain
qualified persons as directors and executive officers.
The Company
maintains a directors and officers liability insurance policy covering its
officers and directors with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
EXEMPTION
FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
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Incorporated by Reference
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Exhibit
No.
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Description
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Form
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Filing
Date
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Number
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Filed
Herewith
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4.1
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Form of Common
Stock Certificate.
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S-1/A
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3/17/2000
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4.01
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4.2
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Amended and Restated
Certificate of Incorporation.
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10-Q
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8/7/2006
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3.01
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4.3
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Certificate of
Designation of Series A Junior Participating Preferred Stock.
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10-Q
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8/7/2006
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3.02
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4.4
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Certificate of
Amendment to Restated Certificate of Incorporation.
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10-Q
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8/7/2006
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3.03
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4.5
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Amended and Restated
Bylaws of Allos Therapeutics, Inc.
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8-K
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6/25/2007
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3.04
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4.6
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Rights Agreement dated
May 6, 2003 between Allos and Mellon Investor Services LLC.
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8-K
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5/9/2003
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99.2
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4.7
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Form of Rights
Certificate.
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8-K
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5/9/2003
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99.3
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4.8
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Amendment to Rights
Agreement dated March 4, 2005 between Allos and Mellon Investor Services
LLC.
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8-K
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3/4/2005
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4.06
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4.9
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Amendment to Rights
Agreement dated January 29, 2007 between Allos and Mellon Investor
Services LLC.
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8-K
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1/30/2007
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4.1
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5.1
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Opinion of Cooley
Godward Kronish LLP.
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X
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23.1
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Consent of
PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
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X
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23.2
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Consent
of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this
Registration Statement.
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24.1
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Powers of Attorney are
included on the signature page hereto.
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99.1
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2008 Equity Incentive
Plan.
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X
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99.2
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Form of Option
Agreement under the 2008 Equity Incentive Plan.
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X
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99.3
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Form of
Restricted Stock Award Agreement under the 2008 Equity Incentive Plan.
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X
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3
UNDERTAKINGS
1.
The
undersigned registrant hereby undertakes:
(a)
To file, during any period
in which offers or sales are being made, a post-effective amendment to this
registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii)
To reflect in the prospectus any facts
or events arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of Registration Fee
table in the effective registration statement.
(iii)
To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement;
Provided, however,
that paragraphs (a)(i) and (a)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(b)
That, for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c)
To remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(d)
That, for the purpose of determining
liability of the registrant under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned registrant undertakes
that in a primary offering of securities of the undersigned registrant pursuant
to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the undersigned
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i)
Any preliminary prospectus or
prospectus of the undersigned registrant relating to the offering required to
be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to
the offering prepared by or on behalf of the undersigned registrant or used or
referred to by the undersigned registrant;
(iii)
The portion of any other free writing
prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer
in the offering made by the undersigned registrant to the purchaser.
4
2.
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrants annual
report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Westminster, State of Colorado, on June 24,
2008.
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ALLOS
THERAPEUTICS, INC.
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By:
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/s/
Paul L. Berns
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Paul
L. Berns
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President
and Chief Executive Officer
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POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS
, that each person whose signature
appears below constitutes and appoints Paul L. Berns and Marc H. Graboyes, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act
of 1933, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Stephen J.
Hoffman
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Chairman of
Board of
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June 24,
2008
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(Stephen J. Hoffman)
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Directors and
Director
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/s/ Paul L.
Berns
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President, Chief
Executive Officer
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June 24,
2008
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(Paul L. Berns)
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and Director
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(Principal
Executive Officer)
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/s/ David C.
Clark
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Vice President,
Finance and Treasurer
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June 24,
2008
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(David C. Clark)
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(Principal
Financial Officer and
Principal Accounting Officer)
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/s/ Michael D.
Casey
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Director
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June 24,
2008
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(Michael D. Casey)
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/s/ Stewart Hen
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Director
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June 24,
2008
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(Stewart Hen)
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/s/ Jeffrey R.
Latts
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Director
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June 24,
2008
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(Jeffrey R. Latts)
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/s/ Jonathan S.
Leff
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Director
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June 24,
2008
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(Jonathan
S. Leff)
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/s/ Timothy P.
Lynch
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Director
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June 24,
2008
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(Timothy P. Lynch)
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6
EXHIBIT
INDEX
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Incorporated by Reference
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Exhibit
No.
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Description
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Form
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Filing
Date
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Number
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Filed
Herewith
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4.1
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Form of Common
Stock Certificate.
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S-1/A
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3/17/2000
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4.01
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4.2
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Amended and Restated
Certificate of Incorporation.
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10-Q
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8/7/2006
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3.01
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4.3
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Certificate of
Designation of Series A Junior Participating Preferred Stock.
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10-Q
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8/7/2006
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3.02
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4.4
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Certificate of
Amendment to Restated Certificate of Incorporation.
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10-Q
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8/7/2006
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3.03
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4.5
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Amended and Restated
Bylaws of Allos Therapeutics, Inc.
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8-K
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6/25/2007
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3.04
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4.6
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Rights Agreement dated
May 6, 2003 between Allos and Mellon Investor Services LLC.
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8-K
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5/9/2003
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99.2
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4.7
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Form of Rights
Certificate.
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8-K
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5/9/2003
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99.3
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4.8
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Amendment to Rights
Agreement dated March 4, 2005 between Allos and Mellon Investor Services
LLC.
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8-K
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3/4/2005
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4.06
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4.9
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Amendment to Rights
Agreement dated January 29, 2007 between Allos and Mellon Investor
Services LLC.
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8-K
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1/30/2007
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4.1
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5.1
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Opinion of Cooley
Godward Kronish LLP.
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X
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23.1
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Consent of
PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
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X
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23.2
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Consent
of Cooley Godward Kronish LLP is contained in Exhibit 5.1 to this
Registration Statement.
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24.1
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Powers of Attorney are
included on the signature page hereto.
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99.1
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2008 Equity Incentive
Plan.
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X
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99.2
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Form of Option
Agreement under the 2008 Equity Incentive Plan.
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X
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99.3
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Form of
Restricted Stock Award Agreement under the 2008 Equity Incentive Plan.
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X
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7
Allos Therapeutics, Inc. (MM) (NASDAQ:ALTH)
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De Juin 2024 à Juil 2024
Allos Therapeutics, Inc. (MM) (NASDAQ:ALTH)
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De Juil 2023 à Juil 2024