ex10-1.htm


     

     

    Exhibit
      10.1

    


    SEPARATION
      AGREEMENT AND RELEASE

     

    This
      Separation Agreement and Release ("Separation Agreement") is entered into by
      and
      between Peter A. Lankau ("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 March 1, 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 the Company (as well as of the Board of Directors of any of the Company's
      subsidiaries) shall be effective immediately.  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 4b below, which exceed any payment and benefits to which you are
      otherwise entitled.  The benefits below shall be in full satisfaction
      of its obligations under the terms of the Employment Agreement and all
      applicable cash or equity incentive compensation plans and
      agreements.

     

    a.           The
      Company shall continue to pay you at your current rate of base salary and
      benefits through March 1, 2008, in accordance with the Company's payroll
      practices.

     

    b.           The
      Company shall pay you an aggregate of $1,939,200 (the "Separation Amount"),
      which represents two times the sum of (i) your current annual base salary
      ($606,000) and (ii) your target incentive compensation for the fiscal year
      in
      which the Separation Date occurs (60% 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.  Notwithstanding the foregoing, in the
      event that the Effective Date does not occur by March 1, 2008, the Separation
      Amount shall not be paid pursuant to the Separation Agreement.

     

    c.           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.

     

    
      
        
        

      

      
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    d.           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. 2000 Stock Incentive Plan or the Endo
      Pharmaceuticals Holdings Inc. 2004 Stock Incentive Plan, as applicable (the
      "Stock Incentive Plans"), as follows:

     

    
      	
              Grant
                Date

            	
              Vested
                Options

              as
                of 2/25/08

            	
              Unvested
                Options

            	
              Exercise
                Price

            	
              Remaining
                vesting dates (out of 4)

            
	
              2/21/07

            	
              43,750

            	
              131,250

            	
              $30.55

            	
              2/22/09,
                2/21/10 & 2/24/11

            
	
              2/14/06

            	
              125,000

            	
              125,000

            	
              $28.61

            	
              2/14/09
                & 2/14/10

            
	
              4/27/05

            	
              125,000

            	
              125,000

            	
              $20.22

            	
              4/27/08
                & 4/27/09

            
	
              8/11/04

            	
              19,138

            	
              6,379

            	
              $16.47

            	
              8/11/08

            


    

     

            (i)           The
      Company also agrees that the 6,379 unvested Options originally granted to you
      on
      August 11, 2004 and the 125,000 unvested Options originally granted to you
      on
      April 27, 2005 shall become fully vested and exercisable as of the Separation
      Date.

     

    (ii)           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 paragraph 2d.(i) above) until the earlier
      to
      occur of the first anniversary of the Separation Date or the original expiration
      date of the Options as set forth in the Stock Incentive Plans or applicable
      Option agreements. 

     

    e.           The
      Company shall pay you incentive compensation for 2007 equal to $300,000
      when in 2008 bonuses for such year are paid to other executives of the
      Company.

     

    f.           The
      Company shall pay you, within 30 days following the Effective Date, an
      additional $60,000 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 $30,000.

     

    
      
        
        

      

      
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    g.           The
      Company's obligation to make the payments and to provide the benefits set forth
      in paragraphs 2d.(i), 2e. and 2f 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.

     

    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 formally 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 each other, and their
      respective counsel, in connection with any investigation, inquiry,
      administrative proceeding or litigation relating to any matter in which you
      were
      involved or of which you have knowledge as a result of your service with the
      

     

    
      
        
        

      

      
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    Company
      by providing truthful information, provided that in your case, such cooperation
      does not unreasonably interfere with your then current professional and personal
      commitments.  The Company agrees to promptly reimburse you for
      reasonable expenses reasonably incurred by you, in connection with your
      cooperation pursuant to this paragraph.  Such expenses shall include
      reasonable legal fees of separate counsel in the event of an actual or
      potential conflict of interest, provided that (i) such selection of counsel
      shall be subject to the prior approval of the Company, which approval shall
      not
      be unreasonably withheld, (ii) the scope of such representation shall be subject
      to the prior approval of the Company which approval shall not be unreasonably
      withheld, and (iii) such reimbursement of legal fees shall not exceed $100,000
      in any one year (which limitation shall not, however, apply to limit any of
      your
      existing rights you may have to indemnification or under the applicable
      directors and officers liability insurance).

     

    b.           You
      agree that, in the event you are subpoenaed or otherwise required by any person
      or entity (including, but not limited to, any government agency) to give
      testimony or produce documents (in a deposition, court proceeding or otherwise)
      which in any way relates to your employment by the Company, you will, to the
      extent not legally prohibited from doing so, give prompt notice of such request
      to the General Counsel of the Company so that the Company may contest the right
      of the requesting person or entity to such disclosure before making such
      disclosure.  Nothing in this provision shall require you violate your
      obligation to comply with valid legal process.

     

    6.           Confidentiality;
      Non-Competition and Non-Interference.  You acknowledge and agree
      that you continue to be bound by the confidentiality, non-competition and
      non-interference covenants set forth in Articles VII and VIII of the Employment
      Agreement as modified below, and the Company shall continue to be entitled
      to
      the benefits of Section 9.1 of the Employment Agreement, and such provisions
      shall survive the termination of the Employment Agreement.  The
      parties agree that the provisions of Article VIII shall not be violated unless
      you are providing services  to the portion of a business whose
      prescription pharmaceutical products compete in whole or in part with the
      Company’s currently marketed products and/or the following products that are
      currently in development, for those indications currently being pursued:
      fentanyl, ketoprofen, sufentanil, N-acetyl cysteine, doxepine, and any marketed
      or development products that the Company acquires or licenses as a result of
      any
      discussions that are ongoing as of the date of this Agreement which discussions
      conclude in a definitive agreement executed within one year of the Separation
      Date; and that there shall be no limitation on you providing services to other
      portions of such entities.

     

    7.           Indemnification.  You
      shall be indemnified to the extent  permitted by applicable laws, if
      you are made a party, or are threatened to be made a party, to any action,
      suit
      or proceeding, whether civil, criminal, administrative or investigative, in
      connection with acts or omissions occurring during your tenure with the Company,
      as provided under Section 2.4 of the Employment Agreement, and such provision
      shall survive the termination of the Employment Agreement and your employment,
      such indemnification shall include the advancement of legal fees in accordance
      with the terms 

     

    
      
        
        

      

      
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    and
      conditions set forth in the Charter and the By-Laws of the
      Company.  The level of directors and officers insurance coverage shall
      not be less than that maintained time to time for active directors and
      officers.

     

    8.           Waiver.

     

    a.           You
      agree that, in consideration of the benefits to be provided to you under this
      Separation Agreement, you hereby waive, release and forever discharge any and
      all claims and rights which you ever had, now have or may have against the
      Company and any of its subsidiaries or affiliated companies, and their
      respective successors and assigns, current and former officers, agents, board
      of
      directors members, representatives and employees, various benefits committees,
      and their respective successors and assigns, heirs, executors and personal
      and
      legal representatives, based on any act, event or omission occurring before
      you
      execute this Separation Agreement arising out of, during or relating to your
      employment or services with the Company or the termination of such employment
      or
      services, except as provided below.  This waiver and release includes,
      but is not limited to, any claims which could be asserted now or in the future,
      under: common law, including, but not limited to, breach of express or implied
      duties, wrongful termination, defamation, or violation of public policy; any
      policies, practices, or procedures of the Company; any federal or state statutes
      or regulations including, but not limited to, Title VII of the Civil Rights
      Act
      of 1964, as amended, 42 U.S.C. §2000e et seq., the Civil Rights Act of
      1866 and 1871, the Americans With Disabilities Act, 42 U.S.C. §12101 et
      seq., the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C.
§1001 et seq. (excluding those rights relating exclusively to employee
      pension benefits as governed by ERISA), the Family and Medical Leave Act, §2601
et. seq., any comparable state laws, any contract of employment,
      express or implied; any provision of the United States or of a state; any
      provision of any other law, common or statutory, of the United States, or any
      applicable state. Notwithstanding the foregoing, nothing contained in this
      paragraph 8a shall (i) impair any rights or potential claims that you may have
      under the federal Age Discrimination in Employment Act of 1967 (the "ADEA")
      subject to paragraph 8c; (ii) be construed to prohibit Executive from bringing
      appropriate proceedings to enforce this Separation Agreement; (iii) effect
      any
      rights of indemnification, or to be held harmless, or any coverage under
      directors and officers liability insurance or rights or claims of contribution
      that you have or (iv) any rights as a shareholder of the Company.

     

    b.           By
      signing this Separation Agreement, you represent that you have not and will
      not
      in the future commence any action or proceeding arising out of the matters
      released hereby, and that you will not seek or be entitled to any award of
      legal
      or equitable relief in any such action or proceeding that may be commenced
      on
      your behalf.  The Company has advised you to consult with an attorney of
      your choosing prior to signing this Separation Agreement.  You
      represent that you understand and agree that you have the right and have been
      given the opportunity to review this Separation Agreement and the ADEA Release,
      with an attorney.  You further represent that you understand and agree
      that the Company is under no obligation to offer this Separation Agreement,
      and
      that you are under no obligation to consent to the waiver.

     

    
      
        
        

      

      
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    c.           In
      accordance with the ADEA release contained in Exhibit A hereto (the "ADEA
      Release"), you shall have twenty-one (21) days from the date of this Agreement
      to consider the ADEA Release and once you have signed the ADEA Release, you
      shall have seven (7) additional days from the date of execution to revoke
      your consent to the ADEA Release.  Any such revocation shall be made
      in writing so as to be received by the Company prior to the eighth (8th) day following
      your
      execution of the ADEA Release.  If no such revocation occurs, the ADEA
      Release shall become effective on the eighth (8th) day following
      your
      execution of the ADEA Release (the "Effective Date").  In the event
      that you fail to sign the ADEA Release within 21 days or revokes your ADEA
      Release thereafter as provided above, this Separation Agreement shall remain
      in
      full force and effect but the Company shall have no obligation to provide the
      benefits in paragraph 2(b), d(i) and 2e above.

     

    9.           Enforcement.  If
      any provision of this Separation Agreement is held by a court of competent
      jurisdiction to be illegal, void or unenforceable, such provision shall have
      no
      effect; however, the remaining provisions shall be enforced to the maximum
      extent possible.  Further, if a court should determine that any
      portion of this Separation Agreement is overbroad or unreasonable, such
      provision shall be given effect to the maximum extent possible by narrowing
      or
      enforcing in part that aspect of the provision found overbroad or
      unreasonable.  Additionally, the parties agree that in the event of
      any breach of the terms of paragraphs 4, 5 and 6 the other party may seek
      injunctive and other equitable relief.  In addition, you agree that
      your willful and knowing failure to return Company Property that relates to
      the
      maintenance of security of the Company Entities and Persons or the maintenance
      of Proprietary Information shall entitle the Company to such injunctive and
      other equitable relief.

     

    10.           No
      Admission.  This Separation Agreement is not intended, and shall
      not be construed, as an admission that either you or the Company Entities and
      Persons have violated any federal, state or local law (statutory or decisional),
      ordinance or regulation, breached any contract or committed any wrong
      whatsoever.

     

    11.           Successor.  This
      Separation Agreement is binding upon, and shall inure to the benefit of, the
      parties and their respective heirs, executors, administrators, successors and
      assigns.

     

    12.           Choice
      of Law.  This Separation Agreement shall be construed and enforced
      in accordance with the laws of the State of Delaware without regard to the
      principles of conflicts of law.

     

    13.           Entire
      Agreement.  You acknowledge that this Separation Agreement
      constitutes the complete understanding between the Company and you, and,
      supersedes any and all agreements, understandings, and discussions, whether
      written or oral, between you and any of the Company Entities and Persons,
      including your Employment Agreement, which shall terminate on the Separation
      Date, except for the provisions of Section 2.4, Section 6.5(h), Articles VII
      and
      VIII (as amended herein) and Section 9.1 of the Employment Agreement which
      shall
      survive such termination.  No other promises or agreements shall be
      binding on the Company unless in writing and signed by both the Company and
      you
      after the date of this Separation Agreement.

     

    
      
        
        

      

      
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    14.           Effective
      Date.  You may accept this Separation Agreement by signing it and
      returning it to Caroline B. Manogue, General Counsel, Endo Pharmaceuticals
      Holdings Inc., 100 Endo Boulevard, Chadds Ford, PA 19317.  The
      effective date of this Separation Agreement shall be the date it is signed
      by
      both parties, provided that the provisions of paragraph 2b, d(i) and 2e shall
      not become effective until the Effective Date, as defined in paragraph
      8c.  In the event you do not accept this Separation Agreement as set
      forth above, this Separation Agreement, including but not limited to the
      obligation of the Company to provide the payments and other benefits described
      herein, shall be deemed automatically null and void.

     

    


    
      	 	 	 
	
              Signature:

            	
              /s/
                Peter A. Lankau

            	 	
              Date:

            	
              January
                28, 2008

            
	 	
              Peter
                A. Lankau

            	 	 
	 	 	 
	 	 	 
	 	 	 
	
              ENDO
                PHARMACEUTICALS HOLDINGS INC.

            	 	 
	 	 	 
	 	 	 
	 	 	 
	
              By:

            	
              /s/
                Roger Kimmel

            	 	
              Date:

            	
              January
                28, 2008

            
	
              Title:

            	
              Roger
                Kimmel, Chairman

            	 	 
	 	 	 


    

     

     

    
 

    


    
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