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EMPLOYMENT AGREEMENT

Employment Agreement Amendment

EMPLOYMENT AGREEMENT You are currently viewing:
This Employment Agreement Amendment involves

Endo Pharmaceuticals Holdings Inc | Nancy J. Wysenski

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Title: EMPLOYMENT AGREEMENT
Governing Law: Delaware     Date: 9/11/2007

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Employment Agreement

Exhibit 10.28

EMPLOYMENT AGREEMENT

THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made as of September 6, 2007, by Endo Pharmaceuticals Holdings Inc., a Delaware corporation (the “Employer”), and Nancy J. Wysenski (the “Employee”).

WHEREAS, the Employee and the Board of Directors of the Employer have each determined that entering into this Agreement is advisable and desirable; and

WHEREAS, the Board of Directors of the Employer has approved this Agreement upon the terms set forth herein;

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.

“Agreement” means this Employment Agreement, including the Exhibits hereto, as amended from time to time.

“Basic Compensation” means Salary and Benefits.

“Benefits” shall have the meaning set forth in Section 3.1(b).

“Board of Directors” means the board of directors of the Employer.

“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);

 

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(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.

“Effective Date” means September 6, 2007.

“Employment Period” shall have the meaning set forth in Section 2.2.

“Fiscal Year” means the Employer’s fiscal year, as it exists on the Effective Date or as changed from time to time.

“for cause” shall have the meaning set forth in Section 6.3.

“for 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” means any individual, corporation (including any non-profit corporation), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, or governmental body.

“Post-Employment Period” shall have the meaning set forth in Article 8.

“Renewal Term” shall have the meaning set forth in Section 2.2.

“Salary” shall have the meaning set forth in Section 3.1(a).

 

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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 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

 

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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). On September 6, 2007 (the Employee’s first day of employment with the Employer), the Employee will be (i) granted 100,000 stock options under the 2004 Stock Incentive Plan and/or the 2007 Stock Incentive Plan, with all such options valued with reference to the closing market price on the September 6, 2007 and (ii) in lieu of a 2007 option grant, paid an additional cash bonus of $100,000.

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 Incentive Compensation is being paid, unless the Employee shall elect to defer the receipt of such Incentive Compensation. 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 Employers’ current Fiscal Year, and the Employer shall consider such proposal in good faith.

 

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Section 3.3 Relocation. 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 the Effective Date, in connection with her relocation to the Chadds Ford, PA area. 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 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 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.

ARTICLE 4. FACILITIES AND EXPENSES.

Section 4.1 Reimbursement. The Employer will furnish the Employee office space, equipment, supplies, and such other facilities and personnel as the Employer deems necessary or appropriate for the performance of the Employee’s duties under this Agreement. The Employer will pay the Employee’s dues in such professional societies and organizations as are appropriate, and will pay on behalf of the Employee (or reimburse the Employee for) reasonable expenses incurred by the Employee at the request of, or on behalf of, the Employer in the performance of the Employee’s duties pursuant to this Agreement, and in accordance with the Employer’s employment policies, including reasonable expenses incurred by the Employee in attending conventions, seminars, and other business meetings and in appropriate business entertainment activities. The Employee must file expense reports with respect to such expenses in accordance with the Employer’s policies.

Section 4.2 Motor Vehicle Allowance. As of the Effective Date, the Employee will be entitled to use of an automobile, and a replacement thereof, mutually acceptable to the Employee and the Employer, at least every three (3) fiscal years after the Effective Date during the Employment Term. The Employer will reimburse the Employee for all operating expenses relating thereto upon the Employee’s submission of appropriate documentation as set forth in Section 4.1. The Employer will determine the actual value, if any, of the Employee’s non-business use of such automobile and will furnish the Employee with a W-2 Wage and Tax Statement, grossed up for taxes, to be included in the Employee’s income tax returns, in accordance with prevailing Internal Revenue Service regulations.

ARTICLE 5. VACATIONS AND HOLIDAYS.

The Employee will be entitled to paid vacation each Fiscal Year in accordance with the vacation policies of the Employer in effect for its executive officers from time to time, provided that in no event shall such number of paid vacation days be fewer than twenty. Vacation must be taken by the Employee at such time or times as approved by the Chief Executive Officer. The Employee will also be entitled to the paid holidays and other paid leave set forth in the Employer’s policies. Vacation days and holidays during any Fiscal Year that are not used by the Employee during such Fiscal Year may be used in any subsequent Fiscal Year.

 

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ARTICLE 6. TERMINATION AND ELECTION NOT TO RENEW.

Section 6.1 Events of Termination. The Employment Period, the Employee’s Basic Compensation and Incentive Compensation, and any and all other rights of the Employee under this Agreement or otherwise as an employee of the Employer will terminate (except as otherwise provided in this Article 6)

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