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Exhibit 10.27
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
"Agreement") is made as of December 31, 2006, by Endo
Pharmaceuticals Holdings Inc., a Delaware corporation (the
"Employer"), and Joyce N. LaViscount (the "Employee").
WHEREAS, the Employee has been employed by the Employer pursuant
to the terms of an Employment Agreement, dated as of
December 6, 2006 (the "Original Agreement"); and
WHEREAS, the Employer and the Employee each desire to amend and
restate the Original Agreement in its entirety;
NEW THEREFORE, intending to be legally bound, and in
consideration of the mutual agreements contained herein, the
parties agree to amend and restate the Original Agreement in its
entirety 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);
(b) information concerning the business and affairs of the
Employer (which includes unpublished financial statements,
financial projections and budgets, unpublished and
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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 January 1, 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 Financial Officer, and will serve as Chief Accounting 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 Financial Officer, 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 $275,000, 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 15 th
and the last day of each month. The Salary, upon a
recommendation by the Chief Financial 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 $275,000 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 sixty (60%) 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 thirty percent (30%) 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.
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
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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 Financial 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.
ARTICLE 6. TERMINATION AND ELECTION NOT TO RENEW
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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):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in
Section 6.2);
(c) for cause (as defined in Section 6.3),
immediately upon notice from the Employer to the Employee, or at
such later time as such notice may specify, unless otherwise
provided in Section 6.3;
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(d) without cause upon not less than
thirty days’ prior notice from the Employer to the
Employee;
(e) for good reason (as defined in Section 6.4) upon
not less than thirty days’ prior notice from the Employee to
the Employer; or
(f) by the Company other than for cause upon not less
than thirty days’ prior notice from the Employer to the
Employee or by the Employee for good
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