Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (“Separation Agreement”) is entered into by and
between Charles A. Rowland, Jr. (“Executive” or
“you”) and Endo Pharmaceuticals Holdings Inc. (the
“Company”), and confirms the agreement that has been
reached with you in connection with your resignation from the
Company.
1. Termination of Employment
. You agree that your resignation shall be effective as of
September 2, 2008 (the “Separation Date”) and as
of such date you shall cease to be employed by the Company in any
capacity and you shall resign from all executive positions you then
hold with the Company and its subsidiaries. Your resignation as a
member of the Board of Directors of any of the Company’s
subsidiaries shall be effective as of the Separation Date. The
Company hereby waives the 30 days’ prior notice requirement
in accordance with Section 6.1 of your Amended and Restated
Employment Agreement dated as of December 19, 2007 (the
“Employment Agreement”). You further agree to execute
any additional documents necessary to effectuate the
foregoing.
2. Separation Pay and
Benefits . In consideration of your execution of this
Separation Agreement and your compliance with its terms and
conditions, the Company agrees to pay or provide you (subject to
the terms and conditions set forth in this Separation Agreement)
with the benefits described in this paragraph 2 and to adhere to
the nondisparagement restrictions set forth in paragraph 4(b)
below. The benefits below shall be in full satisfaction of the
Company’s obligations under the terms of the Employment
Agreement and all applicable cash or equity incentive compensation
plans and agreements except as otherwise preserved by specific
reference herein.
a. The Company shall pay you an
aggregate of $1,404,000 (the “Separation Amount”),
which represents two times the sum of (i) your current annual
base salary ($468,000) and (ii) your target incentive
compensation for the fiscal year in which the Separation Date
occurs (50% of salary). The Separation Amount shall be paid within
30 days following the Effective Date (as defined below). There
shall be deducted from the payment of the Separation Amount all
applicable federal, state and local withholding taxes and other
appropriate deductions.
b. The Company shall provide you
with continued coverage under the Company’s group medical
insurance at the cost in effect at the Separation Date for a period
of twenty-four (24) months following the Separation Date;
provided that, to the extent you become eligible for medical
insurance from a subsequent employer, the Company’s medical
insurance shall become secondary to such subsequent
employer’s medical insurance. The health plan continuation
coverage period provided for under the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) shall commence at the end
of such 24-month period. In addition, the Company shall provide you
with continued life insurance benefits for a period of twenty-four
(24) months following the Separation Date.
c. The parties acknowledge and agree
that you are party to Stock Option Agreements (the “Option
Agreements”) under which you have been granted stock options
to purchase shares of common stock of the Company (the
“Options”) pursuant to the terms of the Endo
Pharmaceuticals Holdings Inc. 2004 Stock Incentive Plan or the Endo
Pharmaceuticals Holdings Inc. 2007 Stock Incentive Plan, as
applicable (the “Stock Incentive Plans”), as
follows:
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Vested Options
as of 9/2/08
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Unvested Options
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Total Options
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Exercise Price
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Remaining
vesting dates
(out of 4)
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2/21/08
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0
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48,866
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48,866
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$
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25.19
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2/21/09, 2/21/10,
2/21/11 & 2/21/12
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1/25/08
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0
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75,000
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75,000
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$
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24.87
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1/25/09, 1/25/10,
1/25/11 & 1/25/12
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12/6/06
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29,088
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87,263
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116,351
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$
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28.27
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12/6/08, 12/6/09 &
12/6/10
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The parties also acknowledge and
agree that you are party to a Restricted Stock Unit Award Agreement
(the “RSU Agreement”) under which you have been granted
6,699 restricted stock units representing 6,699 shares of common
stock of the Company (the “RSUs”) pursuant to the terms
of the Endo Pharmaceuticals Holdings Inc. 2007 Stock Incentive
Plan. These RSUs vest 50% on February 21, 2010 and
February 21, 2012.
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(i)
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The Company
acknowledges that the 75,000 unvested Options originally granted to
you on January 25, 2008 become fully vested and exercisable as
of the Separation Date in accordance with the terms of the
applicable grant agreement.
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(ii)
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The Company
agrees that one-half of the unvested Options originally granted to
you on December 6, 2006 (or the 43,632 of the 87,263 listed
above) shall become fully vested and exercisable as of the
Separation Date.
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(iii)
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The Company
agrees that, in accordance with, and subject to, the terms and
conditions of the Option Agreements, you shall be entitled to
exercise all vested Options held by you as of the Separation Date
(including those that become vested in accordance with paragraphs
2(c)(i) and 2(c)(ii) above) until the first anniversary of the
Separation Date.
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(iv)
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All other
unvested Options and RSUs shall lapse on the Separation Date in
accordance with their terms.
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d. The Company shall pay you, within
30 days following the Effective Date, an additional $20,000 for
office transition services. The Company shall promptly pay in 2008,
upon presentation of invoices, your legal counsel’s
reasonable fees in connection with this Agreement, provided that
the cost of such legal fees shall not exceed $10,000.
e. The Company shall provide you
with continued use of your current Company automobile until the end
of its current lease or the one-year anniversary of the Separation
Date, whichever is later. In accordance with Section 4.2 of
the Employment Agreement, the Company will reimburse you for all
operating expenses relating thereto upon the Executive’s
submission of appropriate documentation as set forth in the
Employment Agreement. The Company will determine the actual value,
if any, of your non-business use of such automobile and will
furnish you with a W-2 Wage and Tax Statement, grossed up for
taxes, to be included in your income tax returns, in accordance
with prevailing Internal Revenue Service regulations. All
reimbursements and gross-ups under this paragraph shall be made as
soon as practicable, and in no event later than the calendar year
following the year in which the expenses are incurred or taxes are
remitted.
f. The Company agrees that it will
not seek reimbursement of any amounts paid to you relating to
relocation pursuant to the offer letter dated October 19,
2006. Any sums received as reimbursement for such relocation
expenses in calendar 2008 shall be grossed up for taxes, to be
included in your income tax returns, in accordance with prevailing
Internal Revenue Service regulations with payments relating to any
gross-up under this paragraph made on or before December 31,
2008.
g. Notwithstanding the foregoing, in
the event that the Effective Date does not occur by October 3,
2008, the Company’s obligation to make the payments and to
provide the benefits set forth in paragraphs 2(c)(ii), 2(d), 2(e)
and 2(f) above shall cease. Additionally, the Company’s
obligation to make the payments and to provide the benefits set
forth in paragraphs 2(c)(ii), 2(d), 2(e) and 2(f) above shall cease
as of the date of any material breach of your obligations under the
covenants set forth in paragraphs 4, 5 and 6 hereof, provided such
breach is not cured within 30 days of the date the Company delivers
you written notice notifying of such breach.
3. Accrued Benefits . Whether
or not you execute this Separation Agreement, you will be paid for
any accrued but unused vacation days, and for unreimbursed business
expenses (in accordance with usual Company policies and practices,
and in no event later than the calendar year following the year in
which the expenses are incurred), to the extent not theretofore
paid. In addition, following the Separation Date, you will be
entitled to receive vested amounts payable to you under the
Company’s 401(k) plan and other retirement and deferred
compensation plans in accordance with the terms of such plans and
applicable law. Except as specifically set forth herein, your
participation in all Company plans shall remain subject to the
terms and conditions of such plans as in effect from time to time
and you agree that such terms and conditions are binding on you and
the Company.
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4. Nondisparagement
.
a. You agree that you will not, with
intent to damage, disparage or encourage or induce others to
disparage any of the Company, its subsidiaries and affiliates,
together with all of their respective past and present directors
and officers, as well as their respective past and present
managers, officers, shareholders, partners, employees, agents,
attorneys, servants and customers and each of their predecessors,
successors and assigns (collectively, the “Company Entities
and Persons”); provided that such limitation shall extend to
past and present managers, officers, shareholders, partners,
employees, agents, attorneys, servants and customers only in their
capacities as such or in respect of their relationship with the
Company and its affiliates.
b. The Company agrees that neither
the Company nor any director or officer, with intent to damage you,
will disparage you or encourage or induce others to disparage
you.
c. For the purposes of this
Separation Agreement, the term “disparage” includes,
without limitation, comments or statements adversely affecting in
any manner (i) the conduct of the business of the Company
Entities and Persons or yours or (ii) the business reputation
of the Company Entities and Persons or yours. Nothing in this
Separation Agreement is intended to or shall prevent either party
from providing, or limiting testimony in response to a valid
subpoena, court order, regulatory request or other judicial,
administrative or legal process or otherwise as required by
law.
5. Cooperation in Any
Investigations and Litigation .
a. The parties agree that they will
reasonably cooperate with ea