EXHIBIT 10.30
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement")
is made as of April 26, 2000 by Endo Pharmaceuticals Inc., a Delaware
corporation (the "Employer") and Xxxxxxx X. XxxXxxxxx (the "Executive").
RECITALS
WHEREAS, the Employer and the Executive entered into an employment
agreement, dated as of August 26, 1997 ( the "Original Employment
Agreement") and concurrently with the execution and delivery of the
Original Employment Agreement, the Employer purchased from The DuPont Merck
Pharmaceutical Company ("DMPC") and Endo Laboratories, L.L.C. ("Endo LLC"),
certain assets comprising their generic and multisource brand drug business
(the "Business") pursuant to an Asset Purchase Agreement, dated as of June
27, 1997 (the "Purchase Agreement"), among DMPC, Endo LLC, DuPont Merck
Pharma Puerto Rico, Employer and Xxxxx & Company. The Executive had been
employed by DMPC in the Business, and the Employer continued to employ the
Executive in the Business, and the Executive accepted such continued
employment, upon the terms and conditions set forth in the Original
Employment Agreement.
WHEREAS, the Executive and the Board of Directors of the Employer
have each determined that amending and restating the Original Employment
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 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(c).
"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 historical financial statements, financial
projections and budgets, historical and projected sales, capital spending
budgets and plans, the names and backgrounds of key personnel, 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.
"CPI" means the Consumer Price Index-All Xxxxx Xxxxxxxxx,
Xxxxxxxxxxxx Xxxxxx (0000-0000 = 100), as published by the United States
Department of Labor.
"DISABILITY" shall have the meaning set forth in Section 6.2.
"EFFECTIVE DATE" means August 26, 1997.
"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).
ARTICLE 2. EMPLOYMENT TERMS AND DUTIES.
SECTION 2.1 EMPLOYMENT. The Employer hereby employs the
Executive, and the Executive 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 initial term of the Executive's employment under this Agreement will be
four (4) years, beginning on the Effective Date and ending on the fourth
anniversary of the Effective Date (the "Initial Term"). The term of this
Agreement may be renewed by the Executive and the Employer for additional
periods of one year (each, a "Renewal Term"; the Initial Term together with
all Renewal Terms, if any, are hereinafter referred to as the "Employment
Period").
SECTION 2.3 DUTIES. The Executive will have such duties
as are assigned or delegated to the Executive by the Chief Executive
Officer, and will initially serve as an Executive Vice President of the
Employer. The Executive will devote the Executive'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 Executive from engaging in additional activities in connection
with personal investments and community affairs that are not inconsistent
with the Executive's duties under this Agreement. It is expressly
understood and agreed that to the extent any such activities have been
conducted by the Executive 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 Executive's duties under this Agreement.
The Executive shall, from time to time, inform the Board of Directors of
those additional activities in which the Executive is engaged. If the
Executive is elected as a director of the Employer or as a director or
officer of any of Employer's subsidiaries, the Executive will fulfill the
Executive'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 Executive to be (a) indemnified as an officer
and 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 Executive serving as an officer and 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 Executive will be paid an annual salary
of $300,000, 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 monthly. The
Salary will be reviewed by the Chief Executive Officer and the Board of
Directors not less frequently than annually, and be adjusted in the sole
discretion of the Chief Executive Officer and the Board of Directors, but
in no event will the Salary be less than $300,000 per year. In determining
the amount of any adjustment to Salary, the Chief Executive Officer and the
Board of Directors 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
Executive under this Agreement. Salary shall not be reduced after such
increase unless such reduction is part of a reduction in salaries of
specified management personnel of Employer undertaken in a program approved
by the Employer's Board of Directors.
(b) STANDARD BENEFITS. The Executive 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 Executive is eligible under the terms of those plans
(collectively, the "Standard Benefits").
(c) SUPPLEMENTAL BENEFITS. Executive will be eligible to
receive certain DMPC medical benefits (including dental benefits) given to
retirees as a result of the transactions contemplated by the Purchase
Agreement. In order to receive such DMPC medical benefits, Executive will
be required to pay sixty percent (60%) of the applicable insurance premiums
(the "Executive's Co-Pay"). Executive agrees to waive coverage under
Employer's medical benefits included within the Standard Benefits in return
for Employer paying the Executive's Co-Pay. Upon Executive's employment
with Employer terminating, Employer will continue to pay the Executive's
Co-Pay for 18 months thereafter. (The benefits described in this Section
3.1(c) are hereinafter referred to as the "Supplemental Benefits"; and the
Standard Benefits together with the Supplemental Benefits are hereinafter
referred to as the "Benefits".)
SECTION 3.2 INCENTIVE COMPENSATION. For each Fiscal Year
or part thereof during the Employment Period the Executive shall be paid in
cash as additional compensation (the "Incentive Compensation") for the
services to be rendered by the Executive pursuant to this Agreement, an
amount equal to forty percent (40%) 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
Board of Directors by the Chief Executive Officer of the Employer and
approved by the Board of Directors) if the Employer meets the performance
targets set by the Board of Directors (the "Performance Targets") for such
Fiscal Year. Incentive Compensation for each Fiscal Year or part thereof
shall be paid as soon as practicable following receipt by the Employer of
its audited financial statements for the Fiscal Year next following the
Fiscal Year for which the Incentive Compensation is being paid, unless the
Executive shall elect to defer the receipt of such Incentive Compensation.
The Executive 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.
ARTICLE 4. FACILITIES AND EXPENSES.
The Employer will furnish the Executive office space,
equipment, supplies, and such other facilities and personnel as the
Employer deems necessary or appropriate for the performance of the
Executive's duties under this Agreement. The Employer will pay the
Executive's dues in such professional societies and organizations as are
appropriate, and will pay on behalf of the Executive (or reimburse the
Executive for) reasonable expenses incurred by the Executive at the request
of, or on behalf of, the Employer in the performance of the Executive's
duties pursuant to this Agreement, and in accordance with the Employer's
employment policies, including reasonable expenses incurred by the
Executive in attending conventions, seminars, and other business meetings,
in appropriate business entertainment activities, and for promotional
expenses. The Executive must file expense reports with respect to such
expenses in accordance with the Employer's policies.
ARTICLE 5. VACATIONS AND HOLIDAYS.
The Executive 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 Executive at such time or times as approved
by the Chief Executive Officer. The Executive 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
Executive during such Fiscal Year may be used in any subsequent Fiscal
Year.
ARTICLE 6. TERMINATION AND ELECTION NOT TO RENEW.
SECTION 6.1 EVENTS OF TERMINATION. The Employment Period,
the Executive's Basic Compensation and Incentive Compensation, and any and
all other rights of the Executive 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 Executive;
(b) upon the disability of the Executive (as defined in
Section 6.2);
(c) for cause (as defined in Section 6.3), immediately
upon notice from the Employer to the Executive, or at such later time as
such notice may specify, unless otherwise provided in Section 6.3; or
(d) for good reason (as defined in Section 6.4) upon not
less than thirty days' prior notice from the Executive to the Employer.
SECTION 6.2 DEFINITION OF DISABILITY. For purposes of
Sections 6.1 and 6.3, the Executive will be deemed to have a "disability"
if, as a result of the Executive's incapacity due to reasonably documented
physical illness or injury or mental illness, the Executive shall have been
unable for more than six months in any twelve month period to perform
Executive's duties hereunder on a full time basis and within 30 days after
written notice of termination has been give to the Executive, the Executive
shall not have returned to the full time performance of such duties. The
date of termination in the case of a termination for "disability" shall be
the last day of the aforementioned 30-day period.
SECTION 6.3 DEFINITION OF "FOR CAUSE." For purposes of
Section 6.1, the phrase "for cause" means: (a) the continued failure, after
written demand is delivered to the Executive which specifically identifies
the failure, by the Executive substantially to perform the Executive's
duties under this Agreement (other than any such failure resulting from
"disability"), (b) the engagement by the Executive in serious misconduct
that has caused, or in the good faith judgment of the Board of Directors
may cause if not discontinued, material harm (financial or otherwise) to
the Employer or any of its subsidiaries, if any (provided that with respect
to misconduct that the Board of Directors determines may cause material
harm if not discontinued, a written demand is delivered to the Executive
specifically identifying the misconduct and the Executive continues the
misconduct), such material harm to include, without limitation, (i) the
disclosure of material secret or confidential information of the Employer
or any of its subsidiaries, if any, (ii) the debarment of the Employer or
any of its subsidiaries, if any, by the U.S. Food and Drug Administration
or any successor agency (the "FDA"), or (iii) the registration of the
Employer or any of its subsidiaries, if any, with the U.S. Drug Enforcement
Administration of any successor agency (the "DEA") to be revoked or an
application with the DEA to be denied, (c) the debarment of the Executive
by the FDA, or (d) the continued material breach by the Executive of this
Agreement or the Stockholder's Agreement, dated as of August 26, 1997,
among the Executive, the Employer and other parties named therein (the
"Stockholder's Agreement") after written demand is delivered to the
Executive which specifically identifies the breach.
SECTION 6.4 DEFINITION OF "FOR GOOD REASON." For purposes
of Section 6.1, the phrase "for good reason" means any of the following:
(a) The Employer's material breach Section 2.4, 3.1 or 3.2 or of this
Agreement or its obligations under the Stockholder's Agreement for the
benefit of Executive; or (b) the assignment of the Executive without the
Executive's consent to a position, responsibilities, or duties of a
materially lesser status or degree of responsibility than the Executive's
position, responsibilities, or duties at the Effective Date.
SECTION 6.5 TERMINATION PAY. Effective upon the
termination of this Agreement, the Employer will be obligated to pay the
Executive (or, in the event of Executive's death, Executive's designated
beneficiary as defined below) only such compensation as is provided in this
Section 6.5 or Section 6.6. For purposes of this Section 6.5, the
Executive's designated beneficiary will be such individual beneficiary or
trust, located at such address, as the Executive may designate by notice to
the Employer from time to time or, if the Executive fails to give notice to
the Employer of such a beneficiary, the Executive's estate. Notwithstanding
the preceding sentence, the Employer will have no duty, in any
circumstances, to attempt to open an estate on behalf of the Executive, to
determine whether any beneficiary designated by the Executive is alive or
to ascertain the address of any such beneficiary, to determine the
existence of any trust, to determine whether any person or entity
purporting to act as the Executive's personal representative (or the
trustee of a trust established by the Executive) is duly authorized to act
in that capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee.
(a) TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If the
Executive terminates this Agreement for good reason, the Employer will (i)
pay (A) monthly to the Executive the Executive's Salary for the remainder
of the Employment Period or eighteen (18) months, whichever is longer, and
(B) the Executive's Incentive Compensation for the Fiscal Year during which
the termination is effective, prorated through the date of termination,
provided that the applicable Performance Targets are met, and (ii) continue
to provide the Executive with the Benefits for the remainder of the
Employment Period or eighteen (18) months, whichever is longer.
(b) TERMINATION BY THE EMPLOYER FOR CAUSE. If the
Employer terminates this Agreement for cause, the Executive will be
entitled to receive the Executive's Salary and Incentive Compensation
prorated through the date such termination is effective.
(c) TERMINATION UPON DISABILITY. If this Agreement is
terminated by either party as a result of the Executive's disability, as
determined under Section 6.2, the Employer will pay the Executive the
Salary and Incentive Compensation (if the applicable Performance Targets
are met) through the remainder of the calendar month during which such
termination is effective and the period until disability insurance benefits
commence ("Disability Coverage Commencement") under the disability
insurance coverage furnished by the Employer to the Executive. From and
after Disability Coverage Commencement and for eighteen (18) consecutive
months thereafter, the Employer will make regular payments to the Executive
in the amount by which the Salary exceeds the Executive's disability
insurance benefits.
(d) TERMINATION UPON DEATH. If this Agreement is
terminated because of the Executive's death, the Executive will be entitled
to receive the Executive's Salary through the end of the calendar month in
which the Executive's death occurs, and Incentive Compensation (if the
applicable Performance Targets are met) for the Fiscal Year during which
the Executive's death occurs, prorated through the date of the Executive's
death.
(e) BENEFITS. Unless otherwise specifically provided
herein or otherwise provided for in the Standard Benefits, the Executive's
accrual of, or participation in plans providing for, the Benefits will
cease at the effective date of the termination of this Agreement, and the
Executive will be entitled to accrued Benefits pursuant to such plans only
as provided in such plans.
SECTION 6.6 ELECTION NOT TO RENEW. If the Executive
elects to renew this Agreement for a Renewal Term, but Employer does not,
and Employer's election not to renew is not for cause, the Executive will
be entitled to receive, the Salary for the remainder, if any, of the
calendar month in which such termination is effective and for eighteen (18)
consecutive calendar months thereafter and the Benefits for eighteen (18)
consecutive months after the date of termination.
SECTION 6.7 ADJUSTMENTS FOR CPI. The amounts payable to
the Executive pursuant to Sections 6.5(a) and (c) and Section 6.6 shall be
adjusted based on CPI every twelve (12) months to account for changes in
the cost of living.
SECTION 6.8 SHAREHOLDER APPROVAL. Employer represents and
warrants that this Agreement has been approved by the shareholders of
Employer in a manner designed to satisfy the requirements of Section
280G(b)(5) of the Internal Revenue Code of 1986, as amended (which section
exempts from the term "parachute payments" payments meeting the shareholder
approval requirements specified therein). The effectiveness of this
Agreement is subject to such shareholder approval.
ARTICLE 7. NON-DISCLOSURE COVENANT.
SECTION 7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The
Executive acknowledges that (a) during the Employment Period and as a part
of the Executive's employment, the Executive will be afforded access to
Confidential Information; and (b) public disclosure of such Confidential
Information could have an adverse effect on the Employer and its business.
SECTION 7.2 AGREEMENTS OF THE EXECUTIVE. In consideration
of the compensation and benefits to be paid or provided to the Executive by
the Employer under this Agreement, the Executive covenants as follows:
(a) During and following the Employment Period, the
Executive will hold in confidence the Confidential Information and will not
disclose it to any person except with the specific prior written consent of
the Employer, as otherwise may be required by law or legal process or
except as otherwise expressly permitted by the terms of this Agreement.
(b) If any information that the Employer deems to be a
trade secret is found by a court of competent jurisdiction not to be a
trade secret for purposes of this Agreement, such information will,
nevertheless, be considered Confidential Information for purposes of this
Agreement. The Executive hereby waives any requirement that the Employer
submit proof of the economic value of any trade secret or post a bond or
other security.
(c) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the Executive
demonstrates was or became generally available to the public other than as
a result of a disclosure by the Executive.
(d) Upon termination of this Agreement by either party,
or upon the request of the Employer during the Employment Period, the
Executive will return to the Employer all Confidential Information in the
Executive's possession or subject to the Executive's control, and the
Executive may not retain any copies, abstracts, sketches, or other physical
embodiment of any of the Confidential Information.
ARTICLE 8. NON-COMPETITION AND NON-INTERFERENCE.
The Executive covenants that the Executive will not,
directly or indirectly during the Employment Period, except in the course
of the Executive's employment hereunder, and during the Post-Employment
Period, directly or indirectly manage, operate, control, or participate in
the management, operation, or control of, be employed by, associated with,
or in any manner connected with, lend the Executive's name to, or render
services or advice to, any third party (including without limitation DPMC
and its affiliates) which manufactures, markets, sells, distributes or
develops any pharmaceutical product that constitutes an API (as defined in
the Purchase Agreement) or is Derivative (as defined in the Purchase
Agreement) of any API, or any business whose products compete in whole or
in part with the products of the Employer (disregarding any non-pain
management products that were not products of the Employer during the
Employment Period).
For purposes of this Article 8, the term "Post-Employment
Period" means the period beginning on the effective date of termination of
the Executive's employment hereunder and ending on the later to occur of
(i) 18 months after the effective date of such termination or (ii) the date
amounts payable to Executive under Section 6.5 (a) and (c) and Section 6.6
are to have been paid in full pursuant to this Agreement (provided that
notwithstanding anything in this Agreement to the contrary, such amounts
are being timely paid by the Employer) .
If any covenant in this Article 8 is held to be
unreasonable, arbitrary, or against public policy, such covenant will be
considered to be divisible with respect to scope, time, and geographic
area, and such lesser scope, time, or geographic area, or all of them, as a
court of competent jurisdiction may determine to be reasonable, not
arbitrary, and not against public policy, will be effective, binding, and
enforceable against the Executive.
ARTICLE 9. GENERAL PROVISIONS.
SECTION 9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The
Executive acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including any provision of Articles 7 and 8) would be irreparable and that
an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in
addition to any other rights it may have, to obtain injunctive relief to
restrain any breach or threatened breach or otherwise to specifically
enforce any provision of this Agreement, and the Employer will not be
obligated to post bond or other security in seeking such relief.
SECTION 9.2 ESSENTIAL AND INDEPENDENT COVENANTS. The
covenants by the Executive in Articles 7 and 8 are essential elements of
this Agreement, and without the Executive's agreement to comply with such
covenants, the Employer would not have entered into the Purchase Agreement
and the Employer would not have entered into this Agreement or employed or
continued the employment of the Executive. The Employer and the Executive
have independently consulted their respective counsel and have been advised
in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by
the Employer.
If the Executive's employment hereunder expires or is
terminated, this Agreement will continue in full force and effect as is
necessary or appropriate to enforce the covenants and agreements of the
Executive in Articles 7 and 8.
SECTION 9.3 DUTY TO MITIGATE. The Executive shall not be
required to mitigate damages or the amount of any payment required under
this Agreement, nor shall the payments due Executive hereunder be reduced
or offset by reason of any payments Executive may receive from any other
source.
SECTION 9.4 REPRESENTATIONS AND WARRANTIES BY THE
EXECUTIVE. The Executive represents and warrants to the Employer that the
execution and delivery by the Executive of this Agreement do not, and the
performance by the Executive of the Executive's obligations hereunder will
not, with or without the giving of notice or the passage of time, or both:
(a) violate any judgment, writ, injunction, or order of any court,
arbitrator, or governmental agency applicable to the Executive; or (b)
conflict with, result in the breach of any provisions of or the termination
of, or constitute a default under, any agreement to which the Executive is
a party or by which the Executive is or may be bound.
SECTION 9.5 WAIVER. The rights and remedies of the
parties to this Agreement are cumulative and not alternative. Neither the
failure nor any delay by any party in exercising any right, power, or
privilege under this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege.
SECTION 9.6 BINDING EFFECT; DELEGATION OF DUTIES
PROHIBITED. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the
Employer may merge or consolidate or to which all or substantially all of
its assets may be transferred. The duties and covenants of the Executive
under this Agreement, being personal, may not be delegated.
SECTION 9.7 NOTICES. All notices, consents, waivers, and
other communications under this Agreement must be in writing and will be
deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by telecopier (with written confirmation
of receipt), provided that a copy is mailed by registered mail, return
receipt requested, or (c) when received by the addressee, if sent by a
nationally recognized overnight delivery service (receipt requested), in
each case to the appropriate addresses and telecopier numbers set forth
below (or to such other addresses and telecopier numbers as a party may
designate by notice to the other parties):
If to the Employer: Endo Pharmaceuticals Inc.
000 Xxxxxxxxxx Xxxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
If to the Executive: Xxxxxxx X. XxxXxxxxx
0 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
SECTION 9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement
contains the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior agreements and
understandings, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended orally, but
only by an agreement in writing signed by the parties hereto.
SECTION 9.9 GOVERNING LAW. This Agreement will be
governed by and construed under the laws of the State of Delaware without
regard to conflicts of laws principles.
SECTION 9.10 SECTION HEADINGS, CONSTRUCTION. The headings
of Sections in this Agreement are provided for convenience only and will
not affect its construction or interpretation. All references to "Section"
or "Sections" refer to the corresponding Section or Sections of this
Agreement unless otherwise specified. All words used in this Agreement will
be construed to be of such gender or number as the circumstances require.
Unless otherwise expressly provided, the word "including" does not limit
the preceding words or terms.
SECTION 9.11 SEVERABILITY. If any provision of this
Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect
to the extent not held invalid or unenforceable.
SECTION 9.12 COUNTERPARTS. This Agreement may be executed
in one or more counterparts, each of which will be deemed to be an original
copy of this Agreement and all of which, when taken together, will be
deemed to constitute one and the same agreement.
[SIGNATURES FOLLOW]
IN WITNESS WHEREOF, the parties have executed and
delivered this Agreement as of the date first written above.
ENDO PHARMACEUTICALS INC.
By: /s/ XXXXX X. XXXXX
--------------------------
Name: Xxxxx X. Xxxxx
Title: President and Chief Executive Officer
/s/ XXXXXXX X. XXXXXXXXX
------------------------
XXXXXXX X. XXXXXXXXX
