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Exhibit
10.28
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “Agreement”) is made as of
December 19, 2007 (the “ Effective Date ”),
by Endo Pharmaceuticals Holdings Inc., a Delaware corporation (the
“ Employer ”), and Nancy J. Wysenski (the
“ Employee ”).
WHEREAS, the Employee has
been employed by the Employer pursuant to the terms of an
Employment Agreement, dated as of September 6, 2007 (the
“ Original Agreement ”); and
WHEREAS, the Employer and the
Employee each desire to amend and restate the Original Agreement in
its entirety;
NOW THEREFORE, in
consideration of the mutual premises and agreements contained
herein, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
DEFINITIONS
For the purposes of this
Agreement, the following terms have the meanings specified or
referred to in this Article 1.
“ Affiliate
” shall have the meaning set forth in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
“ Agreement
” means this Employment Agreement, including the Exhibits
hereto, as amended from time to time.
“ Basic
Compensation ” means Salary and Benefits.
“ Beneficial
Owner ” shall have the meaning set forth in Rule 13d-3
under the Exchange Act.
“ Benefits
” shall have the meaning set forth in
Section 3.1(b).
“ Board of
Directors ” means the board of directors of the
Employer.
“ Change of
Control ” means and shall be deemed to have occurred upon
the first of the following events to occur:
(a) any Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Employer (not including in the securities beneficially owned by
such Person any securities acquired directly from the Employer or
its Affiliates) representing 30% or more of the combined voting
power of the Employer’s then outstanding securities,
excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (i) of
paragraph (c) below; or
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(b) the following individuals
cease for any reason to constitute a majority of the number of
directors then serving: individuals who, on the date hereof,
constitute the Board of Directors and any new director (other than
a director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of
the Employer) whose appointment or election by the Board of
Directors or nomination for election by the Employer’s
stockholders was approved or recommended by a vote of at least
two-thirds ( 2 / 3 ) of the directors then still in office who either
were directors on the date hereof or whose appointment, election or
nomination for election was previously so approved or recommended;
or
(c) there is consummated a
merger or consolidation of the Employer or any direct or indirect
subsidiary of the Employer with any other corporation or other
entity, other than (i) a merger or consolidation which results
in (A) the voting securities of the Employer outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the
Employer or any subsidiary of the Employer, at least 60% of the
combined voting power of the securities of the Employer or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation and (B) the individuals who
comprise the Board of Directors immediately prior thereto
constituting immediately thereafter at least a majority of the
board of directors of the Employer, the entity surviving such
merger or consolidation or, if the Employer or the entity surviving
such merger is then a subsidiary, the ultimate parent thereof, or
(ii) a merger or consolidation effected to implement a
recapitalization of the Employer (or similar transaction) in which
no Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Employer (not including in the
securities Beneficially Owned by such Person any securities
acquired directly from the Employer or its Affiliates) representing
30% or more of the combined voting power of the Employer’s
then outstanding securities; or
(d) the stockholders of the
Employer approve a plan of complete liquidation or dissolution of
the Employer or there is consummated an agreement for the sale or
disposition by the Employer of all or substantially all of the
Employer’s assets (it being conclusively presumed that any
sale or disposition is a sale or disposition by the Employer of all
or substantially all of its assets if the consummation of the sale
or disposition is contingent upon approval by the Employer’s
stockholders unless the Board of Directors expressly determines in
writing that such approval is required solely by reason of any
relationship between the Employer and any other Person or an
Affiliate of the Employer and any other Person), other than a sale
or disposition by the Employer of all or substantially all of the
Employer’s assets to an entity (i) at least 60% of the
combined voting power of the voting securities of which are owned
by stockholders of the Employer in substantially the same
proportions as their ownership of the Employer immediately prior to
such sale or disposition and (ii) the majority of whose board
of directors immediately following such sale or disposition
consists of individuals who comprise the Board of Directors
immediately prior thereto.
Notwithstanding the
foregoing, a “Change of Control” shall not be deemed to
have occurred by virtue of the consummation of any transaction or
series of integrated transactions immediately following which the
record holders of the common stock of the
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Employer immediately prior to such
transaction or series of transactions continue to have
substantially the same proportionate ownership in an entity which
owns all or substantially all of the assets of the Employer
immediately following such transaction or series of
transactions.
“ Confidential
Information ” means any and all:
(a) trade secrets concerning
the business and affairs of the Employer, product specifications,
data, know-how, formulae, compositions, processes, designs,
sketches, photographs, graphs, drawings, samples, inventions and
ideas, past, current, and planned research and development, current
and planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and
programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures
(and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information);
(b) information concerning
the business and affairs of the Employer (which includes
unpublished financial statements, financial projections and
budgets, unpublished and projected sales, capital spending budgets
and plans, the names and backgrounds of key personnel, to the
extent not publicly known, personnel training and techniques and
materials) however documented; and
(c) notes, analysis,
compilations, studies, summaries, and other material prepared by or
for the Employer containing or based, in whole or in part, on any
information included in the foregoing.
“ Disability
” shall have the meaning set forth in
Section 6.2.
“ Employment
Period ” shall have the meaning set forth in
Section 2.2.
“ Exchange Act
” shall mean the Securities Exchange Act of 1934, as amended
from time to time.
“ Fiscal Year
” means the Employer’s fiscal year, as it exists on the
Effective Date or as changed from time to time.
“ Cause ”
shall have the meaning set forth in Section 6.3.
“ Good Reason
” shall have the meaning set forth in
Section 6.4.
“ Incentive
Compensation ” shall have the meaning set forth in
Section 3.2.
“ Person ”
shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the
Employer or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the
Employer or any of its Affiliates, (iii) an underwriter
temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly
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or indirectly, by the stockholders of
the Employer in substantially the same proportions as their
ownership of stock of the Employer.
“ Post-Employment
Period ” shall have the meaning set forth in Article
8.
“ Salary ”
shall have the meaning set forth in Section 3.1(a).
“ Section 409A
” means Section 409A of the Internal Revenue Code of
1986, as amended (the “ Code ”) and applicable
guidance issued thereunder.
ARTICLE 2
EMPLOYMENT TERMS AND
DUTIES
Section 2.1
Employment . The Employer hereby employs the Employee, and
the Employee hereby accepts employment by the Employer, upon the
terms and conditions set forth in this Agreement.
Section 2.2 Term
. Subject to the provisions of Article 6, the term of the
Employee’s employment under this Agreement will be a rolling
twenty-four month period commencing each day after the Effective
Date and ending on the twenty-four month anniversary of such day
(the “ Employment Period ”). For purposes of
this Agreement, employment and compensation paid by any direct or
indirect subsidiary of the Employer will be deemed to be employment
and compensation paid by the Employer.
Section 2.3
Duties . The Employee will have such duties as are assigned
or delegated to the Employee by the Chief Executive Officer, and
will serve as Chief Operating Officer of the Employer. The Employee
will devote the Employee’s business, time, attention, skill,
and energy to the business of the Employer, will promote the
success of the Employer’s business, and will cooperate with
the Chief Executive Officer and the Board of Directors in the
advancement of the best interests of the Employer. Nothing in this
Section 2.3, however, will prevent the Employee from engaging
in additional activities in connection with personal investments,
corporate directorships and community affairs that are not
inconsistent with the Employee’s duties under this Agreement.
It is expressly understood and agreed that to the extent any such
activities have been conducted by the Employee prior to the
Effective Date, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to
be inconsistent with the Employee’s duties under this
Agreement. The Employee shall, from time to time, inform the Chief
Executive Officer of those additional activities in which the
Employee is engaged. If, at any time, the Employee is elected as a
director of the Employer or as a director or officer of any of
Employer’s subsidiaries, the Employee will fulfill the
Employee’s duties as such director or officer without
additional compensation.
Section 2.4
Director’s and Officer’s Liability Coverage .
The Employer shall cause the Employee to be (a) indemnified as
an officer and/or director of the Employer or any of its
Affiliates, to the extent applicable, to the maximum extent
permitted by applicable law, and (b) covered by
director’s and officer’s liability insurance in
connection with the Employee serving as
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an officer and/or director of Employer
or any of its Affiliates. The provisions of this Section 2.4
shall survive termination of this Agreement for any
reason.
ARTICLE 3
COMPENSATION
Section 3.1 Basic
Compensation.
(a) Salary . The
Employee will be paid an annual salary of $450,000, subject to
adjustment as provided below (the “ Salary ”),
which will be payable in equal periodic installments according to
the Employer’s customary payroll practices, but no less
frequently than the 15th and the last day of each month. The
Salary, upon a recommendation by the Chief Executive Officer, will
be reviewed by the Compensation Committee of the Board of Directors
(the “ Committee ”) not less frequently than
annually, and be adjusted in the sole discretion of the Committee,
but in no event will the Salary be less than $450,000 per year. In
determining the amount of any adjustment to Salary, the Committee
shall take into account inflation, merit, changes in
responsibilities and industry salary practices for executives. Any
increase in Salary shall not serve to limit or reduce any other
obligation to the Employee under this Agreement.
(b) Benefits . The
Employee will, during the Employment Period, be permitted to
participate in such incentive, savings, pension, profit sharing,
bonus, life insurance, hospitalization and major medical, and other
employee benefit plans, practices, policies and programs, of the
Employer that may be in effect from time to time, to the extent the
Employee is eligible under the terms of those plans (collectively,
the “ Benefits ”).
(c) Stock
Options/Restricted Shares . To the extent the Employer
determines to award stock options, restricted shares or other
similar consideration to management personnel based upon duration
of employment or achieving performance targets, or both, the
Employee shall be permitted to participate in such programs. For
each Fiscal Year or part thereof during the Employment Period the
Employee shall be eligible to earn as additional compensation for
the services to be rendered by the Employee pursuant to this
Agreement, long-term equity incentives in an amount equal up to two
hundred percent (200%) of the Salary for such Fiscal Year (or
such lesser (including zero) or greater percent of the Salary for
such Fiscal Year as is recommended in good faith to the Committee
by the Chief Executive Officer of the Employer and approved by the
Committee).
Section 3.2 Incentive
Compensation . For each Fiscal Year or part thereof during the
Employment Period the Employee shall be eligible to be paid in cash
additional compensation (the “Incentive Compensation”)
for the services to be rendered by the Employee pursuant to this
Agreement, an amount equal to fifty-five percent (55%) of the
Salary for such Fiscal Year (or such lesser (including zero) or
greater (not to exceed two hundred) percent of the Salary for such
Fiscal Year as is recommended in good faith to the Committee by the
Chief Executive Officer of the Employer and approved by the
Committee) if the Employer achieves certain performance targets set
by the Committee (the “Performance Targets”) for such
Fiscal Year. Incentive Compensation for each Fiscal Year or part
thereof shall be paid as soon as practicable following the receipt
by the Employer of its audited financial statements for the Fiscal
Year for which the
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Incentive Compensation is being paid,
and in no event later than the 15th day of the third month
following the end of the taxable year (of the Employer or the
Employee, whichever is later) in which the Performance Targets have
been achieved, and unless the Employee shall elect to defer the
receipt of such Incentive Compensation in compliance with
Section 409A. The Employee shall be permitted to submit a
proposal for additional incentive compensation with respect to the
period commencing on the date hereof and ending at the end of the
Employer’s current Fiscal Year, and the Employer shall
consider such proposal in good faith.
Section 3.3
Relocation . To the extent not already provided under the
Original Agreement, the Employer will provide the Employee with a
relocation allowance of up to $75,000 to cover documented and
reasonable moving expenses that are incurred within twelve
(12) months of September 7, 2007 (the “ Original
Effective Date ”), in connection with her relocation to
the Chadds Ford, PA area. To the extent not already provided under
the Original Agreement, the Employee shall also be eligible for
temporary living expense reimbursement, to be pre-approved by
Employer, for up to twelve (12) months after the Original
Effective Date. All such sums must be repaid to the Employer in the
event the Employee voluntarily terminates his employment within
eighteen (18) months of the Original Effective Date.
Additionally, should her employment status materially change
involuntarily during her first twelve months of employment, she
will be eligible for a one-time reverse relocation bonus of $75,000
to the extent not alrea
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