EX-4.1.2



 








AMENDMENT NO. 2




TO THE




AMENDED AND RESTATED STOCKHOLDERS AGREEMENT




     AMENDMENT NO. 2 TO THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of June 28, 2004 (the “Amendment”),

by and among Endo Pharmaceuticals Holdings Inc., a Delaware corporation (the “Company”), Kelso Investment Associates V, L.P., a
Delaware limited partnership (together with Kelso Equity Partners V, L.P., a Delaware limited partnership, “Kelso”), Endo Phanna
LLC, a Delaware limited liability company (“Endo LLC”) and the stockholders of the Company set forth on Exhibit A hereto (each, an
“Amending Stockholder,” and collectively the “Amending Stockholders”).



     WHEREAS, the Company, Kelso, Endo LLC and the Amending Stockholders are parties to that certain Amended and
Restated Stockholders Agreement, dated as of July 14, 2000, as amended on July 7, 2003 (the “Stockholders Agreement”);



     WHEREAS, the Company, Kelso, Endo LLC and the Amending Stockholders desire to amend the Stockholders Agreement
pursuant to Section 9.5 thereof, to clarify the scope of certain rights granted thereunder in connection with sales of the
Company’s common stock by Endo LLC;



     WHEREAS, the Amending Stockholders beneficially own, in the aggregate, a majority of the shares of the Company’s
common stock owned by all “Management Stockholders,” as such term is defined in the Stockholders Agreement, as of the date hereof;
and



     WHEREAS, all capitalized terms used in this Amendment, and not otherwise defined herein, shall have the meanings
assigned to them in the Stockholders Agreement.



     NOW, THEREFORE, in consideration of the mutual promises and obligations of the Parties set forth in this
Amendment, the Parties hereto agree that the Stockholders Agreement is hereby amended as follows:



1. A new Section 6.5 will be added to the Stockholders Agreement and shall hereafter read in full as follows:




     “6.5 Shelf Registration. Notwithstanding anything to the contrary contained in this Agreement, if the Company
agrees to register shares of Common Stock on behalf of Endo LLC pursuant to a shelf registration statement (a “Shelf Registration
Statement”) under Rule 415 of the Act (other than a registration pursuant to the Endo LLC Registration Rights Agreement) and such
Shelf Registration Statement provides for, among other things, sales by Endo LLC through one or more (including any combination
thereof) (i) block trades, (ii) underwritten offerings, (iii) derivative transactions with third parties, or (iv) other types of
hedging transactions (each, a “Take-down Transaction”),



 









 





then Endo LLC agrees that at least 15% of the aggregate number of shares
of Common Stock to be sold in any Take-down Transaction will be available for sale by Management Stockholders and “Employee
Stockholders” (as such term is defined in that certain Amended and Restated Employee Stockholders Agreement, dated as of July 14,
2000, by and among the Company, Kelso, Endo LLC and the Employee Stockholders, as the same shall be amended from time to time) in
accordance with the rights, procedures and limitations set forth in Schedule 1 attached hereto. If the Company registers shares of
Common Stock on behalf of Endo LLC pursuant to a Shelf Registration Statement, neither the filing nor the effectiveness of such
Shelf Registration Statement shall be a demand registration referred to in the first sentence of Section 6.1 hereof and the rights
and procedures outlined in Section 6.1 hereof shall not be triggered by the filing or effectiveness of such Shelf Registration
Statement. Each time a Take-down Transaction occurs under a Shelf Registration Statement, the consummation of each Take-down
Transaction shall not be a demand registration referred to in the first sentence of Section 6.1 hereof and the rights and
procedures outlined in Section 6.1 hereof shall not be triggered by the consummation of such transaction; provided, that:




     (a) Each time a Take-down Transaction occurs under a Shelf Registration Statement, the rights, limitations and procedures
outlined in this Section 6.4 and Schedule 1 attached hereto shall apply to all Take-down Transactions consummated under a Shelf
Registration Statement and the rights and procedures outlined in Section 6.1 shall not apply to such Take-down Transaction.



     (b) Each time shares of Common Stock are included and actually sold in such Take-down Transaction, the transfer restrictions
contained in Section 1.1 hereof shall no longer apply to such shares of Common Stock; provided, however, that notwithstanding the
foregoing, if the sale of such shares of Common Stock in a Take-down Transaction would result in a “matching opposite-way”
transaction under Section 16 of the Securities Exchange Act of 1934, as amended from time to time, such shares of Common Stock may
not be included in such Take-down Transaction and the restrictions contained in Section 1.1 hereof shall continue to apply.”



2. NATURE OF AMENDMENT.p Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and remedies of any party under, the Stockholders Agreement, nor
alter, modify, amend or in any way affect any of the tenns, conditions, obligations, covenants or agreements contained in the
Stockholders Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect. This
Amendment shall apply and be effective only with respect to the provisions of the Stockholders Agreement specifically referred to
in this Amendment. All future references to the Stockholders Agreement or any document which references or incorporates the
Stockholders Agreement shall be deemed to refer to the Stockholders Agreement as amended by this Amendment.





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