Exhibit 10.2
SHELF REGISTRATION AGREEMENT
AGREEMENT, dated as of April 30, 2004 by and between Endo Pharmaceuticals
Holdings Inc. (the "Company") and Endo Pharma LLC (the "LLC" and collectively,
the "Parties").
WHEREAS, the Company and the LLC have determined to amend and restate
the Tax Sharing Agreement, dated July 17, 2000 by and among the Company, Endo
Pharmaceuticals Inc., and LLC (the "Tax Sharing Agreement");
WHEREAS, in connection with the amendment and restatement of the Tax
Sharing Agreement the Company has offered to file a Registration Statement on
Form S-3 with the Securities and Exchange Commission (the "Commission") to
register shares of the Company's common stock, par value $.01 (the "Common
Stock") for resale by the LLC and other stockholders of the Company (the "Shelf
Registration Statement");
WHEREAS, the LLC has certain registration rights pursuant to a
Registration Rights Agreement, by and among the Company and the LLC dated July
17, 2000 and as amended as of June 30, 2003 (the "Registration Rights
Agreement"), which does not provide for a shelf registration statement;
WHEREAS, the LLC has demand registration rights pursuant to the
Registration Rights Agreement and certain other stockholders of the Company have
other registration rights pursuant to the Amended and Restated Employee
Stockholders Agreement dated as of June 5, 2003 by and among the Company, the
LLC and the parties named therein (the "Employee Stockholders Agreement") and
the Stockholders Agreement dated as of July 14, 2000 and as amended on July 7,
2003 by and among the Company, the LLC and the parties named therein (the
"Stockholders Agreement");
WHEREAS, the Parties desire to enter into this Agreement in connection
with the Company's filing of a Shelf Registration Statement;
NOW, THEREFORE, in consideration of the premises, representations,
warranties and agreements herein contained, the Parties agree as follows:
ARTICLE I
Section 1.1 Shelf Registration Statement. The Company agrees to file with the
Commission a Shelf Registration Statement to register 30 million shares of the
Company's Common Stock, which will include a certain number of shares of Common
Stock for resale by the LLC and a certain number of shares of Common Stock for
resale by other stockholders of the Company, to be determined by the Company and
the LLC (collectively, the "Selling Stockholders"), to be sold in underwritten
offerings (each an "Underwritten Offering"). The Company has no obligation to
ensure that the Shelf Registration Statement is declared effective by the
Commission.
Section 1.2 Demand Right. In consideration of the Company filing the Shelf
Registration Statement, the LLC agrees (a) not to exercise any of its demand
registration rights granted pursuant to the Registration Rights Agreement until
the later of (i) six months from the date of effectiveness of the Shelf
Registration Statement or (ii) 30 days after the last share of Common Stock
registered for the account of the LLC is sold pursuant to the Shelf Registration
Statement, unless in either case, all of the members of the board of directors
of the Company who do not then (by themselves or through an affiliate) have a
financial interest in the LLC or otherwise have a financial interest in any
payments that may be made by the Company or any successor to the Company approve
the exercise of such a demand registration right, and (b) to reduce by two the
number of demand registration rights available to it pursuant to the
Registration Rights Agreement. Furthermore, the Company and the LLC hereby agree
that neither the filing nor the effectiveness of the Shelf Registration
Statement or any transaction consummated under the Shelf Registration Agreement
constitutes a demand under Section 1.1 of the Registration Rights Agreement nor
do such actions trigger any rights accorded to stockholders under Section 6.1 of
the Amended and Restated Stockholders Agreement or Section 5.6(b) of the Amended
and Restated Employee Stockholders Agreement. The provisions of this Section 1.2
shall not become effective unless and until the Registration Statement has been
declared effective by the Commission.
Section 1.3 Procedures for Shelf Registration. The Company and the LLC agree
that the procedures for any Underwritten Offering will be in conformity with
those set forth in the Registration Rights Agreement, the Employee Stockholders
Agreement and the Stockholders Agreement and shall apply to any sales of Common
Stock sold in an Underwritten Offering and that the provisions set forth in
Section 3(h), the paragraph immediately following Section 3(o) and the last
paragraph of Section 3 of the Registration Rights Agreement shall apply to the
Shelf Registration Statement.
Section 1.4 Additional Shelf Registrations Statements. The parties agree that,
in the event the Company determines to file any additional shelf registration
statements (an "Additional Registration Statement") providing for the resale by
the LLC of Common Stock, they will enter into an agreement substantially similar
to this Agreement with respect to such Additional Registration Statement, except
that with respect to any such Additional Registration Statement, the LLC would
agree to reduce the number of demand registration rights available to it by one
instead of two.
Section 1.5 Delay and Suspension Rights. Upon a good faith determination by a
majority of the Board of Directors of the Company that it is in the best
interests of the Company for reasons including, but not limited to, those under
Section 3(h) of the Registration Rights Agreement, to (i) suspend the use of a
Shelf Registration Statement following the effectiveness of a Shelf Registration
Statement, or (ii) with respect to any demand or other request to sell Common
Stock registered under a Shelf Registration Statement, delay an offering of
Common Stock, then the Company, by notice to the Selling Stockholders, may
suspend sales of the Common Stock pursuant to the Shelf Registration Statement
for a reasonable period as determined by the Board of Directors of the Company.
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ARTICLE II
Section 2.1 Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
Section 2.2 Counterparts. This Agreement may be executed in any number of
counterparts, which together shall constitute one and the same instrument.
Section 2.3 Termination. This Agreement shall terminate on the later of (i) six
months from the date of effectiveness of the Shelf Registration Statement or
(ii) 30 days after the last share of Common Stock registered for the account of
the LLC is sold pursuant to the Shelf Registration Statement.
Section 2.4 Entire Agreement; No Third Party Beneficiaries. This Agreement is
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. This Agreement is not intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
effective as of the date first written above.
ENDO PHARMA LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
ENDO PHARMACEUTICALS
HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
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