UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
__________
FORM
8-K/A
Amendment No. 1
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): May 1, 2008 (April 29,
2008)
Endo
Pharmaceuticals Holdings Inc.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-15989
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13-4022871
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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100
Endo Boulevard, Chadds Ford, PA (19317)
(Address
of Principal Executive Offices) (Zip Code)
Registrant's
telephone number, including area code: (610) 558-9800
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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£
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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£
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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£
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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£
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Explanatory
Note
This Form 8-K/A is being
filed to amend and restate Item 8.01 of the Current Report on Form 8-K filed on
April 30, 2008 to, among other things, correct an error in the description
of the measurement period relating to the restrictions on D.E. Shaw's ability to
solicit proxies with respect to Endo's 2009 Annual Meeting.
Item
8.01, Other Events
On
April 29, 2008, Endo Pharmaceuticals Holdings Inc. ("Endo") and D.E. Shaw &
Co., L.P. and certain of its affiliates (collectively, "D.E. Shaw") entered into
an agreement (the "Agreement") pursuant to which D.E. Shaw has the
right to suggest an independent person not affiliated with D. E. Shaw (together
with any replacement director appointed in accordance with the Agreement, the
"New Director") for consideration by the Company's Nominating & Governance
Committee (the "Committee") and Board of Directors (the "Board") for election or
appointment to the Board. Of D.E. Shaw's suggested nominees, the
Committee has recommended, and the full Board has determined in accordance with
its regular process, to nominate William F. Spengler at the 2008 annual meeting
of stockholders of Endo (the "2008 Annual Meeting") to serve as a member of the
Board. Endo has also agreed to increase the size of the Board in
order to permit the election of the New Director. In the event the
New Director leaves the Board (whether by resignation or otherwise) before the
2009 annual meeting of stockholders of Endo (the "2009 Annual Meeting"), D.E.
Shaw will be entitled to suggest to the Committee one replacement director, and
the Board will appoint such replacement director to the Board upon a favorable
recommendation by the Committee and approval by the Board.
The
Agreement further provides that D.E. Shaw will not engage in any solicitation of
proxies with respect to the election of directors or any other matter to be
voted on at the 2008 Annual Meeting and will vote all shares of Endo common
stock that they are entitled to vote at the 2008 Annual Meeting in favor of (1)
the election of each of the nominees of the Board and (2) the proposal to amend
Endo's Amended and Restated Certificate of Incorporation to increase the number
of shares of common stock authorized for issuance. D.E. Shaw has also
agreed that it will not solicit written consents from stockholders on any
matter, including the removal or election of directors, prior to the 2009 Annual
Meeting and will not take any action, directly or indirectly, to convene a
special meeting of Endo's stockholders prior to the 2009 Annual
Meeting. Additionally, in the event that the New Director is
renominated to the Board in connection with the 2009 Annual Meeting, D.E. Shaw
has agreed not to engage, directly or indirectly, in any solicitation of proxies
with respect to the election of directors or any other matter to be voted on at
the 2009 Annual Meeting. D.E. Shaw will not be bound by the
restrictions on solicitation with respect to the 2009 Annual Meeting if (i)
David Holveck is no longer the Chief Executive Officer of Endo, (ii) Endo
receives an unsolicited bona fide offer from a third party to acquire all of its
outstanding shares of common stock and such third party is soliciting proxies to
elect one or more candidates to the Board at the 2009 Annual Meeting or (iii)
the volume weighted average closing price of Endo's common stock does not equal
or exceed $30.00 per share during any consecutive 15 day trading period
beginning on January 1, 2009 and ending on the later of March 31, 2009 and three
days before the deadline for timely notice of director nomination under the
Company's by-laws; provided, however, that D.E. Shaw will continue to be bound
by such restrictions if the Amex Pharmaceutical Index declines by at least 10%
based on the consecutive 10 trading days beginning on the date of the Agreement
and the consecutive 10 trading days ending on the later of March 31, 2009
and the day that is three days before the deadline for timely notice of director
nomination under the Company's by-laws, and the share price of Endo's common
stock outperforms such index by at least 15% during the same measurement
period.
D.E.
Shaw has further agreed that until December 31, 2010, for so long as it
beneficially owns more than 5% of Endo's outstanding common stock, it will
provide Endo with at least 45 days notice of its intent to solicit proxies or
written consents in connection with proposing directors to, or removing
directors from, the Board of Directors
The
foregoing summary of the Agreement does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of the Agreement,
which is attached as Exhibit 99.1 and incorporated by reference. The
press release announcing Endo's entry into the Agreement with D.E. Shaw is
attached as Exhibit 99.2.
Item
9.01, Financial Statements and Exhibits
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99.1
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Agreement
dated April 29, 2008 between Endo Pharmaceuticals Holdings Inc. and D. E.
Shaw Valence Portfolios, L.L.C. (on behalf of itself and its affiliates
that are members of the 13D Group with respect to the Endo common
stock).
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99.2
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Press
Release of Endo Pharmaceuticals Holdings Inc. and D.E. Shaw & Co.,
L.P., dated April 30, 2008.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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ENDO
PHARMACEUTICALS HOLDINGS INC.
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By:
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/s/
Caroline B. Manogue
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Caroline
B. Manogue
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Executive
Vice President,
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Chief
Legal Officer & Secretary
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Dated: May
1, 2008
INDEX
TO EXHIBITS
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Exhibit
No.
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Description
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99.1
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Agreement
dated April 29, 2008 between Endo Pharmaceuticals Holding, Inc. and D. E.
Shaw Valence Portfolios, L.L.C. (on behalf of itself and its affiliates
that are members of the 13D Group with respect to the Endo common
stock)
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99.2
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Press
Release of Endo Pharmaceuticals Holdings Inc. and D.E. Shaw & Co.,
L.P., dated April 30, 2008
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