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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unpublished financial statements, financial projections and
budgets, unpublished and projected sales, capital spending budgets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 15 th 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
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