Exhibit 10.23
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”) is entered into as of October 6, 2008
(the “Effective Date”) between Abraxis BioScience, LLC,
a Delaware limited liability company (the “Company”),
and Edward Geehr, M.D. (“Executive”).
RECITAL
The Company desires to employ
Executive, and Executive desires to be so employed by the Company,
on the terms and subject to the conditions set forth in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the mutual promises set forth in this Agreement,
the Company and Executive hereby agree as follows:
1. Definitions . Unless
otherwise defined herein, the capitalized terms defined in
Exhibit A shall have the meanings therein specified for all
purposes of this Agreement.
2. Employment .
(a) Subject to the terms and
conditions contained herein, the Company hereby agrees to employ
Executive, and Executive accepts such employment, on the Effective
Date until the Termination Date.
(b) During Executive’s
employment under this Agreement, Executive shall render services to
the Company and its parent Abraxis BioScience, Inc.
(“Parent”) in the position of Executive Vice President
of Operations of the Company and Parent, subject to such other
title or titles as may be assigned to Executive by the Board.
Executive shall perform such duties and responsibilities as are
normally related to such positions, subject to such modified or
additional duties (that are not materially inconsistent with duties
and responsibilities as are normally related to such positions) as
may be assigned by the Board or the Chief Executive Officer.
Executive will report to the Chief Executive Officer.
(c) In performing his services
hereunder, Executive shall abide by the rules, regulations, and
practices of the Company (and, if applicable, Parent) as adopted or
modified from time to time in the sole discretion of the Company
(or, if applicable, Parent).
(d) Executive will devote his entire
business time, energy, attention and skill to the services of the
Company (and, if applicable, Parent) and to the promotion of its
interests. So long as Executive is employed by the Company,
Executive shall not, without the written consent of the
Company:
(i) engage in any other activity for
compensation, profit or other pecuniary advantage, whether received
during or after the term of this Agreement;
(ii) render or perform services of a
business, professional, or commercial nature other than to or for
the Company (or, if applicable, Parent), either alone or as an
employee, consultant, director, officer, or partner of another
business entity (including serving on boards of directors), whether
or not for compensation; or
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(iii) plan or otherwise take any
preliminary steps, either alone or in concert with others, to
establish or engage in any business or activity that would compete
with the current or proposed business of the Company (and, if
applicable, Parent);
provided , that it shall not be a violation of this
Agreement for Executive to (A) serve on civic or charitable
boards, (B) manage personal investments, (C) serve on
corporate boards, (D) engage in such other activities as the
Chief Executive Officer may approve, so long as such activities do
not interfere materially with the performance of Executive’s
duties and responsibilities to the Company (and, if applicable,
Parent) or (E) continue to serve as a consultant and board
member of iLinkMD Corporation (d/b/a LifeScript.com, Inc.), so long
as such activities do not interfere materially with the performance
of Executive’s duties and responsibilities to the Company
(and, if applicable, Parent).
(e) Prior to or concurrently with
the execution of this Agreement, Executive has executed an
Executive Proprietary Information, Trade Secret and Confidentiality
Agreement (the “Confidentiality Agreement”).
3. Location of Employment .
Executive’s principal place of employment shall initially be
at the Company’s offices in Los Angeles, California;
provided, that at the reasonable direction of the Chief Executive
Officer, Executive may from time to time be required to travel to
various domestic and foreign locations for purposes consistent with
his duties hereunder.
4. Compensation .
(a) In exchange for full performance
of Executive’s obligations and duties under this Agreement,
the Company shall pay Executive a salary at the rate of Four
Hundred Twenty-Five Thousand ($425,000.00) per year (“Base
Salary”). The Base Salary shall be paid in accordance with
the Company’s regularly established payroll practice. The
Base Salary will be reviewed from time to time in accordance with
the established procedures of the Company for adjusting salaries
for similarly situated employees and may be adjusted in the sole
discretion of the Board or Parent’s Compensation Committee.
Any such adjusted salary shall become the “Base
Salary.”
(b) The Base Salary hereof is a
gross amount, and the Company shall be required to withhold from
such amount deductions with respect to Federal, state and local
taxes, FICA, unemployment compensation taxes and similar taxes,
assessments or withholding requirements.
(c) During Executive’s
employment under this Agreement, Executive shall also be reimbursed
by the Company for reasonable business expenses actually incurred
or paid by Executive, consistent with the policies established by
the Company, in rendering to the Company the services provided for
in this Agreement.
(d) Executive shall be entitled to
vacation and sick leave on terms equivalent to those of other
executive officers of the Company. Executive shall accrue
four (4) weeks of vacation in his first year of employment
with the Company in accordance with the Company’s standard
vacation policy.
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(e) Executive shall be entitled to
participate in all benefit plans (including but not limited to any
medical, dental, life insurance, retirement and disability plans)
and to all perquisites which shall be available from time to time
to the executive officers of the Company generally; provided, that
Executive shall have no right to participate in any stock option,
stock purchase or other plan relating to shares of capital stock of
the Company or its affiliates (except as provided in subsection
(f) below). Executive acknowledges and agrees that the Company
may, in its discretion, terminate at any time or modify from time
to time any such benefit plans.
(f) Subject to Board approval and
determination as to the number of stock options, Parent will
provide Executive with an option to purchase shares of
Parent’s common stock, which option (a) shall have an
exercise price equal to the closing trading price of Parent’s
common stock at the grant date, (b) shall vest in equal
installments over a four year period, (c) shall be evidenced
by Parent’s standard form of stock option agreement for its
officers and shall otherwise be subject to the terms and conditions
of Parent’s stock incentive plan. The stock options granted
by the Board shall be no less than those options typically granted
to newly-hired executive officers of Parent. In addition,
commencing in 2010 (for stock option awards determined by the Board
with respect to the 2009 fiscal year), Executive shall be eligible
to receive annual grants of stock options or other equity awards
(at the same time such grants are made to the other executive
officers of the Company), in such amounts and subject to such terms
as may be determined in the sole discretion of the Board or
Parent’s Compensation Committee.
(g) Executive shall be eligible to
receive an annual bonus in such amount, and subject to such
performance targets and other factors, as may be determined in the
sole discretion of the Board or Parent’s Compensation
Committee. The target bonus amounts and performance targets for
Executive shall be established at the same time such amounts and
targets are established for the other executive officers of the
Company, and any bonuses earned shall be paid at the same time as
bonuses for other executive officers. Executive acknowledges that
his target bonus for the 2008 and 2009 fiscal years will be fifty
percent (50%) of his Base Salary and will be prorated for the
partial 2008 fiscal year (“Target Bonus”).
(h) Within thirty (30) days
after the Effective Date, the Company shall pay to Executive a
one-time sign on bonus of Fifty Thousand Dollars ($50,000.00) in
cash (“Sign On Bonus”). If Executive voluntarily
terminates his employment with the Company pursuant to
Section 6(e)(i), (other than for Good Reason as set forth in
Section 6(e)(ii)) on or before the expiration of the one
(1) year anniversary of the Effective Date, Executive shall
repay the Company the Sign On Bonus in cash within thirty
(30) days of his Termination Date.
(i) The Company will pay or
reimburse Executive for temporary corporate housing in the Los
Angeles area for up to twelve (12) months, all on terms and
conditions mutually agreed upon between the Company and Executive.
In addition, to assist Executive and his family with relocating to
the Los Angeles area, the Company and Executive will agree upon a
mutually acceptable relocation package.
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(j) Other than as expressly set
forth in this Section 4, Executive shall not receive any other
compensation or benefits from the Company or Parent.
5. Term . Executive’s
employment hereunder shall commence on the Effective Date and shall
continue in effect until terminated pursuant to Section 6
below.
6. Termination .
Executive’s employment hereunder may be terminated as
follows:
(a) The employment of Executive
under this Agreement shall terminate on the date of
Executive’s death.
(b) The employment of Executive
under this Agreement may be terminated by the Company immediately
upon giving Executive notice if Executive becomes
Disabled.
(c) The employment of Executive
under this Agreement may be terminated by the Company immediately
upon giving Executive notice upon the occurrence of
Cause.
(d) In addition to the circumstances
described in subsection (c) above, the Company may terminate
Executive’s employment at any time (immediately upon giving
notice to Executive) for any reason or no reason, with or without
Cause or prior notice; provided, that a cessation of the
Company’s employment of Executive in connection with a Sale
Transaction shall not be deemed for purposes of this Agreement to
be a termination of Executive by the Company if the Successor
assumes and agree to perform the Company’s obligations
hereunder.
(e) Executive may voluntarily
terminate his employment under this Agreement by giving the Chief
Executive Officer written notice of his resignation signed by
Executive or, if no notice is given, on the date on which Executive
voluntarily terminates his employment relationship with the
Company. Such voluntary termination shall be deemed for purposes
hereof to have occurred for Good Reason only if (i) Executive
provides written notice to the Company prior to resignation and
within twenty (20) days after Executive becomes aware of the
circumstances giving rise to Good Reason, (ii) the Company
fails to correct the circumstances giving rise to Good Reason prior
to resignation and within thirty (30) days following receipt
of such notice and (iii) Executive resigns within fifteen
(15) days following such thirty (30) day
period.
7. Consequences of
Termination .
(a) If the employment of Executive
under this Agreement is terminated pursuant to 6(a) (death), 6(b)
(disability), 6(c) (termination with Cause) or 6(e)(i) (voluntary
termination, other than for Good Reason), then (i) the Company
shall pay Executive (or, as applicable, his heirs, estate or
representative) the Accrued Compensation, (ii) the Company
shall provide to Executive (or his dependents, as applicable) such
benefits, if any, as may be required to be provided by the Company
under the Consolidated Omnibus Budget Reconciliation Act
(“COBRA”) and any disability policy of the Company
applicable to Executive, (iii) Executive (or, as applicable,
his heirs, estate or representative) shall be entitled to vested
benefits, stock options and other equity awards as applicable and
(iv) Executive shall not be entitled to any other compensation
or benefits from the Company under this Agreement or otherwise. The
Accrued Compensation shall be paid promptly after termination of
employment; provided, that the benefits and amounts accrued under
the plans and programs shall be paid or provided in accordance with
such plans or programs.
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(b) If the employment of Executive
under this Agreement is terminated pursuant to Section 6(d)
(termination without Cause) or Section 6(e)(ii) (voluntary
termination for Good Reason), then Executive shall not be entitled
to any compensation or benefits from the Company under this
Agreement or otherwise, except for the following:
(i) The Company shall pay to
Executive all Accrued Compensation and Executive shall be eligible
for COBRA benefits described in Section 7(a);
(ii) Following the Termination Date,
the Company shall (so long as the termination of Executive’s
employment qualifies as a “separation from service”
under Section 409A) pay Executive, in substantially equal
monthly installments over the duration of the Severance Period, an
aggregate amount (the “Severance Amount”) equal to the
sum of (A) 150% of the Base Amount plus (B) the Severance
Bonus Amount. Notwithstanding the preceding sentence and any other
provision of this Agreement to the contrary, if Executive is a
“specified employee” within the meaning of
Section 409A at the time of Executive’s termination,
then to the extent the portion of the Severance Amount and the
benefits provided under this Agreement, together with any other
severance payments or benefits that may be considered deferred
compensation under Section 409A, which exceed the
Section 409A Limit or which do not qualify as separation pay
under Treasury Regulation Section 1.409A-1(b)(9)(iii) that
would otherwise be payable within the first six (6) months
following the Termination Date, shall not be paid during such six-
month period. Instead, such portion of the Severance Amount and any
such benefits shall accrue during the six (6) month period and
be paid in a lump sum on the date six (6) months and one
(1) day following the Termination Date.
(iii) The vesting of the stock
options and other equity awards granted to Executive shall
accelerate so that such options and other equity awards shall have
vested to the same extent as would if Executive were terminated on
the last day of the Severance Period;
provided, that Executive shall not
be entitled to receive any post-termination benefits described in
clause (ii), and (iii) of this subsection (b) unless,
within twenty-one (21) days following the Termination Date, he
executes and delivers to the Company a Release of Claims in the
form attached as Exhibit B hereto.
(c) Executive agrees that all
property (including, without limitation, all equipment, tangible
proprietary information, documents, records, notes, contracts and
computer-generated materials) furnished to or created or prepared
by Executive incident to Executive’s employment belongs to
the Company (or, as applicable, Parent) and shall be promptly
returned to the Company upon termination of Executive’s
employment.
(d) Upon termination of
Executive’s employment, Executive shall be deemed to have
resigned from all offices and directorships then held with the
Company, Parent, and each of their subsidiaries. Following any
termination of employment, Executive shall reasonably
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cooperate with the Company
(i) in the winding up of pending work on behalf of the Company
and the orderly transfer of work to other employees and
(ii) in the defense of any action brought by any third party
against the Company or Parent that relates to Executive’s
employment by the Company; provided, that in each case the Company
shall reimburse the executive for any reasonable and documented
out-of-pocket fees and expenses incurred by Executive in connection
with such cooperation.
8. Additional Post-Termination
Obligations .
(a) Executive acknowledges that
(i) because of his position with the Company, he will have
access to the information about the operations, business strategies
and customers, and other valuable proprietary information and trade
secrets, of the Company, Parent and their affiliates, (ii) the
use or disclosure of such information and trade secrets in
violation of this Agreement would be extremely difficult to detect
or prove and (iii) any activities restricted by this
Section 8 would necessarily involve the use or disclosure of
the Company’s and/or Parent’s trade secrets and/or
proprietary information. Accordingly, Executive agrees that from
the date hereof until after the twelve month anniversary of the
Termination Date, Executive will not, directly or
indirectly:
(i) engage in any business activity
that is or may reasonably be found to be in competition with the
business of the Company or Parent (or any of their subsidiaries or
affiliates), as such business may exist at any time from the
Effective Date through the Termination Date; provided, that nothing
in this Agreement shall be deemed to prohibit Executive from owning
not more than one percent (1%) of any class of publicly traded
securities of a competitor;
(ii) solicit, raid, entice or induce
any employee of the Company or Parent (or any of their subsidiaries
or affiliates) to be employed by any other company (except to the
extent that such employee has first responded to a general
advertisement or general employment search by Executive’s
place of employment at the time);
(iii) solicit business for any
competitor from, or transact such business for any competitor with,
any person, firm or corporation which was, at any time during
Executive’s employment hereunder, a customer of the Company
or Parent (or any of their subsidiaries or affiliates);
or
(iv) assist any person or entity in
taking such action.
(b) Executive agrees that he will
not disparage, or otherwise communicate to anyone, information
which may be harmful to the business or the business reputation of
the Company or Parent (or any of their subsidiaries or affiliates)
or their respective employees, officers, directors, customers,
suppliers, successors, and assigns, including without limitation,
negative c
