schedule13da.htm

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Re2aunUprZAt4O4nzzSlBe8lzQuSRh2RAZky1dp8Dpq1qPqdBZPRguME9srBXkj2 1RAnoG2fvl0NjE5xhNWDMg== 0001359824-08-000016.txt : 20080502 0001359824-08-000016.hdr.sgml : 20080502 20080501175655 ACCESSION NUMBER: 0001359824-08-000016 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 20080502 DATE AS OF CHANGE: 20080501 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENDO PHARMACEUTICALS HOLDINGS INC CENTRAL INDEX KEY: 0001100962 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 134022871 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-59365 FILM NUMBER: 08795956 BUSINESS ADDRESS: STREET 1: 100 ENDO BOULEVARD CITY: CHADDS FORD STATE: PA ZIP: 19317 BUSINESS PHONE: 6105589800 MAIL ADDRESS: STREET 1: 100 ENDO BOULEVARD CITY: CHADDS FORD STATE: PA ZIP: 19317 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: D. E. SHAW & CO, L.P. CENTRAL INDEX KEY: 0001009268 IRS NUMBER: 133695715 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2124780000 MAIL ADDRESS: STREET 1: 39TH FLOOR, TOWER 45 STREET 2: 120 WEST FORTY-FIFTH STREET CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: SHAW D E & CO L P /NY/ DATE OF NAME CHANGE: 19990421 SC 13D/A 1 schedule13da.htm SCHEDULE 13D/A schedule13da.htm

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934

(Amendment No. 5)*

ENDO Pharmaceuticals Holdings Inc.

(Name of Issuer)

Common Stock, $0.01 par value

(Title of Class Securities)

29264F205

D. E. Shaw & Co., L.P.

Attn: Compliance Department

120 West Forty-Fifth Street

Floor 39, Tower 45

New York, NY 10036

212-478-0000

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communication)

Copies to:

Christopher Boies, Esq.

Boies, Schiller & Flexner LLP

575 Lexington Avenue

New York, NY 10022

April 29, 2008

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

*The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP No.			29264F205
1	Name of Reporting Person. I.R.S. IDENTIFICATION D. E. Shaw Valence Portfolios, L.L.C. FEIN 13-4046559
2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) o
3	SEC Use Only
4	Source of Funds (See Instructions) WC
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o
6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7		Sole Voting Power -0-
		8		Shared Voting Power 13,169,444
		9		Sole Dispositive Power -0-
		10		Shared Dispositive Power 13,169,444
11	Aggregate Amount Beneficially Owned by Each Reporting Person 1 13,169,444
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o
13	Percent of Class Represented by Amount in Row (11) 9.8%
14	Type of Reporting Person (See Instructions) OO

1 The 13,169,444 Common Shares set forth above include (a) 13,144,444 Common Shares owned by Valence, and (b) 25,000 Common Shares which Valence has the right to acquire through the exercise of listed call options.

CUSIP No.			29264F205
1	Name of Reporting Person. I.R.S. IDENTIFICATION D. E. Shaw & Co., L.P. FEIN 13-3695715
2	Check the Appropriate Box if a Member of a Group (See Instructions) (a) o (b) o
3	SEC Use Only
4	Source of Funds (See Instructions) AF
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o
6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7		Sole Voting Power -0-
		8		Shared Voting Power 13,170,244
		9		Sole Dispositive Power -0-
		10		Shared Dispositive Power 13,170,244
11	Aggregate Amount Beneficially Owned by Each Reporting Person 13,170,244
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o
13	Percent of Class Represented by Amount in Row (11) 9.8%
14	Type of Reporting Person (See Instructions) IN, PN

CUSIP No.			29264F205
1	Name of Reporting Person. I.R.S. IDENTIFICATION David E. Shaw
2	Check the Appropriate Box if a Member of a Group (See Instructions) (a)o (b)o
3	SEC Use Only
4	Source of Funds (See Instructions) AF
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) o
6	Citizenship or Place of Organization Delaware
Number of Shares Beneficially Owned by Each Reporting Person With		7		Sole Voting Power -0-
		8		Shared Voting Power 13,170,244
		9		Sole Dispositive Power -0-
		10		Shared Dispositive Power 13,170,244
11	Aggregate Amount Beneficially Owned by Each Reporting Person 13,170,244
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) o
13	Percent of Class Represented by Amount in Row (11) 9.8%
14	Type of Reporting Person (See Instructions) IN

AMENDMENT NO. 5 TO SCHEDULE 13D

	This Amendment No. 5 to Schedule 13D amends and supplements the Schedule 13D filed with the Securities and Exchange Commission (the “SEC”) on July 30, 2007, as amended by Amendment No. 1 to Schedule 13D filed with the SEC on October 12, 2007, by Amendment No. 2 to Schedule 13D filed with the SEC on November 21, 2007, by Amendment No. 3 to Schedule 13D filed with the SEC on December 21, 2007, and by Amendment No. 4 to Schedule 13D filed with the SEC on February 28, 2008 (as amended, the “Schedule 13D”). Capitalized terms used herein which are not defined herein have the meanings given to such terms in the Schedule 13D. Except as otherwise provided herein, all Items of the Schedule 13D remain unchanged.
Item 4.	Purpose of Transaction
	Item 4 of the 13D is hereby supplemented as follows:
	Valence, on behalf of itself and the Reporting Persons, has entered into a letter agreement with the Issuer, dated April 29, 2008 (the “Agreement”), pursuant to which the Issuer’s Board of Directors (the “Board”) will, subject to its internal approval procedures, nominate William F. Spengler to serve as a member of the Board at the Issuer’s 2008 annual meeting of stockholders (the “2008 Annual Meeting”). Mr. Spengler is not affiliated with any of the Reporting Persons. The Reporting Persons have agreed not to engage in any solicitation of proxies with respect to the election of members of the Board or any other matter to be voted on at the 2008 Annual Meeting and to vote all of their Common Shares in favor of the election of each of the Issuer’s nominees to the Board at the 2008 Annual Meeting. In the Agreement the Reporting Persons also have agreed not to solicit proxies from the Issuer’s stockholders in connection with any matter until and, subject to certain matters set forth in the Agreement, through the Issuer’s 2009 annual meeting of stockholders. 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 3 to this Schedule 13D. The press release announcing the Issuer’s entry into the Agreement with Valence is attached as Exhibit 4 to this Schedule 13D. As of the date of this Schedule 13D, the Reporting Persons have no intention, individually or collectively, of taking any actions that are designed to direct or cause the direction of the management and policies of the Issuer or otherwise exercise a controlling influence over the Issuer.
Item 5.	Interest in Securities of the Issuer
	Item 5 of the 13D is hereby supplemented as follows:
	(a), (b) Based upon the Issuer’s Form 10-K, filed with the Securities and Exchange Commission on February 26, 2008, there were 134,144,993 Common Shares issued and outstanding as of February 15, 2008. The 13,169,444 Common Shares beneficially owned by Valence (the “Valence Shares”) represent approximately 9.8% of the Common Shares issued and outstanding.2 The 13,170,244 Common Shares beneficially owned by DESCO LP (the “Subject Shares”) represent approximately 9.8% of the Common Shares issued and outstanding. The Subject Shares are comprised of (i) the Valence Shares and (ii) 800 Common Shares under the management of DESIM LLC (the “DESIM Shares”).
	Valence has the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) the Valence Shares. DESIM LLC has the power to vote or to direct the vote of (and the power to dispose or direct the disposition of) the DESIM Shares. Valence disclaims beneficial ownership of the Common Shares beneficially owned by DESIM LLC; and DESIM LLC disclaims beneficial ownership of the Common Shares beneficially owned by Valence.
	DESCO LP, as managing member and investment adviser of Valence and managing member of DESIM LLC, may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Valence Shares, and the shared power to vote or direct the vote of (and the power to dispose or direct the disposition of) the DESIM Shares. As general partner of DESCO LP, DESCO Inc. may be deemed to have the shared power to vote or to direct the vote of (and the shared power to dispose or direct the disposition of) the Valence Shares and the shared power to vote or direct the vote of (and the power to dispose or direct the disposition of) the DESIM Shares. Neither DESCO LP nor DESCO Inc. owns any Common Shares directly, and each such entity disclaims beneficial ownership of the Subject Shares.
	David E. Shaw does not own any shares directly. By virtue of David E. Shaw’s position as President and sole shareholder of DESCO Inc., which is the general partner of DESCO LP, which in turn is the managing member and investment adviser of Valence and the managing member of DESIM LLC, David E. Shaw may be deemed to have the shared power to vote or direct the vote of (and the shared power to dispose or direct the disposition of) the Valence Shares and the shared power to vote or direct the vote of (and the power to dispose or direct the disposition of) the DESIM Shares. David E. Shaw disclaims beneficial ownership of the Subject Shares.
	As of the date hereof, neither any Reporting Person nor, to the best knowledge of any Reporting Person, any of the persons set forth in Item 2 owns any Common Shares other than those set forth in this Item 5.
	(c) The trading dates, number of Common Shares purchased or sold, and the price per share for all transactions by the Reporting Persons in the Common Shares from March 1, 2008 through April 30, 2008, which were all brokered transactions, are set forth below:

2 The 13,169,444 Common Shares set forth above include (a) 13,144,444 Common Shares owned by Valence, and (b) 25,000 Common Shares which Valence has the right to acquire through the exercise of listed call options.

Name	Date	Price per Share	Number of Shares Purchased/(Sold)
DESIM LLC	3/3/2008	27.43	(200)
DESIM LLC	3/3/2008	27.46	(200)
DESIM LLC	3/11/2008	23.89	(82)
DESIM LLC	3/11/2008	23.92	(300)
DESIM LLC	3/11/2008	24.25	(800)
DESIM LLC	3/11/2008	24.29	(200)
DESIM LLC	3/11/2008	24.31	(918)
DESIM LLC	3/11/2008	24.39	(200)
Valence	3/5/2008	26.31	(400)
Valence	3/5/2008	26.32	(400)
Valence	3/5/2008	26.33	(600)
Valence	3/5/2008	26.35	(400)
Valence	3/5/2008	26.38	(500)
Valence	3/5/2008	26.47	(200)
Valence	3/5/2008	26.51	(800)
Valence	3/5/2008	26.52	(400)
Valence	3/5/2008	26.56	(297)
Valence	3/5/2008	26.57	(400)
Valence	3/5/2008	26.59	(900)
Valence	3/5/2008	26.60	(600)
Valence	3/5/2008	26.62	(300)
Valence	3/5/2008	26.66	(200)
Valence	3/5/2008	26.70	(600)
Valence	3/5/2008	26.74	(500)
Valence	3/5/2008	26.79	(700)
Valence	3/5/2008	26.80	(200)
Valence	3/6/2008	25.86	(300)
Valence	3/6/2008	25.88	(700)
Valence	3/6/2008	25.91	(400)
Valence	3/6/2008	25.94	(200)
Valence	3/6/2008	25.95	(400)
Valence	3/6/2008	25.96	(200)
Valence	3/7/2008	25.21	(400)
Valence	3/10/2008	24.17	(300)
Valence	3/11/2008	24.04	(200)
Valence	3/11/2008	24.05	(300)
Valence	3/11/2008	24.08	(500)
Valence	3/11/2008	24.22	(200)
Valence	3/11/2008	24.24	(400)
Valence	3/11/2008	24.26	(400)
Valence	3/12/2008	24.74	(100)
Valence	3/12/2008	24.78	(100)
Valence	3/12/2008	24.87	(100)
Valence	3/12/2008	24.95	(200)
Valence	3/12/2008	24.96	(200)
Valence	3/12/2008	24.98	(300)
Valence	3/12/2008	25.00	(200)
Valence	3/12/2008	25.10	(200)
Valence	3/12/2008	25.12	(100)
Valence	3/12/2008	25.17	(100)
Valence	3/12/2008	25.18	(100)
Valence	3/12/2008	25.20	(400)
Valence	3/12/2008	25.21	(200)
Valence	3/12/2008	25.28	(100)
Valence	3/12/2008	25.30	(100)
Valence	3/13/2008	23.60	(100)
Valence	3/13/2008	23.61	(100)
Valence	3/13/2008	23.64	(100)
Valence	3/13/2008	23.67	(500)
Valence	3/13/2008	23.69	(200)
Valence	3/13/2008	23.70	(100)
Valence	3/13/2008	23.71	(100)
Valence	3/13/2008	23.72	(100)
Valence	3/13/2008	23.73	(100)

The trading dates, transactions, exercises and assignments, and the price per share implied by the transactions, for all transactions by the Reporting Persons in options of the Issuer from March 1, 2008 through April 30, 2008, which were all brokered transactions, are set forth below:

Name	Date	Security Description	Action	Number of Shares	Price Per Contract
Valence	4/18/2008	$35 April 2008 Call	Expiry	3000	0
Valence	4/18/2008	$30 April 2008 Call	Expiry	2000	0

	(d) Other than with respect to Common Shares which Valence has the right to acquire through call options, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the Common Shares set forth above.
Item 6.	Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
	Item 6 of the Schedule 13D is hereby amended and restated in its entirety as follows:
	On April 29, 2008, Valence entered into the Agreement with the Issuer. The Reporting Persons have attached (i) the Agreement as Exhibit 3 to this Schedule 13D and (ii) the press release relating to the Agreement as Exhibit 4 to this Schedule 13D. Valence maintains an open short position of 2,900 Common Shares. Except for the matters described herein, neither the Reporting Persons nor, to the best knowledge of any Reporting Person, any of the persons listed in Item 2 has any contract, arrangement, understanding or relationship with any person with respect to any securities of the Issuer as of April 30, 2008.
Item 7.	Material to be Filed as Exhibits
Exhibit 1	Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co., Inc., in favor of the signatories hereto, among others, dated October 24, 2007.
Exhibit 2	Power of Attorney, granted by David E. Shaw relating to D. E. Shaw & Co. II, Inc., in favor of the signatories hereto, among others, dated October 24, 2007.
Exhibit 3	Letter Agreement, dated April 29, 2008.
Exhibit 4	Press Release, dated April 30, 2008.

SIGNATURE

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete, and correct.

Dated: May 1, 2008

D. E. SHAW VALENCE PORTFOLIOS, L.L.C.
By:	D. E. SHAW & CO., L.P., as Managing Member

	By:	/s/Rochelle Elias
		Name: Rochelle Elias
		Title: Chief Compliance Officer

D. E. SHAW SYNOPTIC PORTFOLIOS 2, L.L.C.
By:	D. E. SHAW & CO., L.L.C., as Managing Member

	By:	/s/Rochelle Elias
		Name: Rochelle Elias
		Title: Chief Compliance Officer

D. E. SHAW & CO., L.P.

By:	/s/Rochelle Elias
	Name: Rochelle Elias
	Title: Chief Compliance Officer

DAVID E. SHAW

By:	/s/Rochelle Elias
	Name: Rochelle Elias
	Title: Attorney-in-Fact for David E. Shaw

EX-1.HTM 2 exhibit1.htm POWER OF ATTORNEY exhibit1.htm

Exhibit 1

POWER OF ATTORNEY

FOR CERTAIN FILINGS

UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, David E. Shaw, hereby make, constitute, and appoint each of:

Anne Dinning,

Rochelle Elias,

Julius Gaudio,

John Liftin,

Louis Salkind,

Stuart Steckler,

Maximilian Stone, and

Eric Wepsic,

acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co., Inc. (acting for itself or as the general partner of D. E. Shaw & Co., L. P. and general partner, managing member, or manager of other entities, any of which in turn may be acting for itself or other entities) all documents, certificates, instruments, statements, other filings, and amendments to the foregoing (collectively, “documents”) determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, and 13F and Schedules 13D and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing, or filing any such documents to or with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person’s execution, delivery, furnishing, and/or filing of the applicable document.

This power of attorney shall be valid from the date hereof and replaces the power granted on February 24, 2004, which is hereby cancelled.

IN WITNESS HEREOF, I have executed this instrument as of the date set forth below.

Date: October 24, 2007

DAVID E. SHAW, as President of

D. E. Shaw & Co., Inc.

/s/David E. Shaw

New York, New York

EX-2.HTM 3 exhibit2.htm POWER OF ATTORNEY exhibit2.htm

Exhibit 2

POWER OF ATTORNEY

FOR CERTAIN FILINGS

UNDER THE SECURITIES EXCHANGE ACT OF 1934

I, David E. Shaw, hereby make, constitute, and appoint each of:

Anne Dinning,

Rochelle Elias,

Julius Gaudio,

John Liftin,

Louis Salkind,

Stuart Steckler,

Maximilian Stone, and

Eric Wepsic,

acting individually, as my agent and attorney-in-fact, with full power of substitution, for the purpose of, from time to time, executing in my name and/or my capacity as President of D. E. Shaw & Co. II, Inc. (acting for itself or as the managing member of D. E. Shaw & Co., L.L.C. and general partner, managing member, or manager of other entities, any of which in turn may be acting for itself or other entities) all documents, certificates, instruments, statements, other filings, and amendments to the foregoing (collectively, “documents”) determined by such person to be necessary or appropriate to comply with ownership or control-person reporting requirements imposed by any United States or non-United States governmental or regulatory authority, including without limitation Forms 3, 4, 5, and 13F and Schedules 13D and 13G required to be filed with the Securities and Exchange Commission; and delivering, furnishing, or filing any such documents to or with the appropriate governmental or regulatory authority. Any such determination shall be conclusively evidenced by such person’s execution, delivery, furnishing, and/or filing of the applicable document.

This power of attorney shall be valid from the date hereof and replaces the power granted on February 24, 2004, which is hereby cancelled.

IN WITNESS HEREOF, I have executed this instrument as of the date set forth below.

Date: October 24, 2007

DAVID E. SHAW, as President of

D. E. Shaw & Co. II, Inc.

/s/David E. Shaw

New York, New York

EX-3.HTM 4 exhibit3.htm SETTLEMENT AGREEMENT exhibit3.htm

Exhibit 3

ENDO PHARMACEUTICALS HOLDINGS INC.

April 29, 2008

D. E. Shaw Valence Portfolios, L.L.C.

c/o D. E. Shaw & Co., L.P.

39th Floor, Tower 45

120 West 45th Street

New York, NY 10036

Ladies and Gentlemen:

This letter sets forth the agreement between Endo Pharmaceuticals Holdings Inc. (the “Company”), on the one hand, and D. E. Shaw Valence Portfolios, L.L.C., on behalf of itself and its respective affiliates that are or become members of a Section 13(d) group with respect to the shares of Common Stock of the Company (collectively the “D. E. Shaw Entities”), on the other hand, with respect to the matters set forth below.

1. The D. E. Shaw Entities have identified an individual whom they have suggested be appointed as a new, “independent” director (the “New Director”) to the Company’s Board of Directors (the “Board”) and who is not employed by or affiliated with any of the D. E. Shaw Entities and who is “independent” under current NASDAQ Stock Market Rules. The Nominating and Governance Committee of the Board (the “Committee”) shall, in accordance with the Committee’s regular procedures and guidelines, meet to review the qualifications of the New Director to serve as a member of the Board. If the Committee determines that the New Director meets the qualifications to serve as a member of the Board, it shall recommend the New Director to the Board for appointment or for election at the 2008 annual meeting of stockholders (the “2008 Annual Meeting”). The Board shall meet to consider the appointment or election of the New Director as promptly as practicable (but not later than the next regularly-scheduled Board Meeting) after such candidate’s qualifications have been reviewed and favorably recommended by the Committee. The Company shall notify the D. E. Shaw Entities as promptly as practicable if the Committee determines that the New Director does not meet the qualifications of the Board, and the D. E. Shaw Entities shall have the right to propose additional persons so qualified to be considered and appointed or elected as a New Director in accordance with the provisions hereof. In the event that the New Director is recommended by the Committee and approved by the Board prior to the mailing of the Company’s definitive proxy statement for the 2008 Annual Meeting, such New Director shall be included in the Board’s slate of directors for election at the 2008 Annual Meeting. In the event that the New Director is recommended by the Committee and approved by the Board following the mailing of the definitive proxy statement for the 2008 Annual Meeting, such New Director shall be appointed to the Board at the first regular meeting of the Board following the 2008 Annual Meeting. The Company agrees that it will take all necessary action to increase the size of the Board, if necessary, in order to permit the election or appointment of the New Director.

2. The D.E. Shaw Entities agree not to nominate directors for election or present new business at the 2008 Annual Meeting, including by providing any notice of such action under Article II, Section 3 or Article II, Section 10 of the Company’s By-laws.

3. If the New Director leaves the Board (whether by resignation or otherwise) before the 2009 Annual Meeting, the D. E. Shaw Entities will be entitled to suggest to the Committee a replacement director who meets the Committee’s qualifications for serving as a member of the Board. In the event the Committee does not favorably recommend to the Board a replacement director suggested by the D. E. Shaw Entities, the D. E. Shaw Entities will have the right to suggest an additional replacement director(s) for consideration by the Committee. After a favorable recommendation by the Committee and approval by the Board, the Board will appoint such replacement director to the Board as soon as practicable, but not later than the next regularly-scheduled meeting of the Board.

4. The D.E. Shaw Entities further agree that they will not engage or in any way participate, 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 2008 Annual Meeting. The D.E. Shaw Entities further agree that they will not solicit, or in any way participate directly or indirectly in the solicitation of consents of, stockholders on any matter, including the removal or election of directors, prior to the 2009 Annual Meeting of Stockholders (the “2009 Annual Meeting”) and will not take any action, directly or indirectly, to convene, or participate with or encourage any other stockholder to convene a special meeting of the Company’s stockholders prior to the 2009 Annual Meeting or seek to advise, encourage or influence any person with respect to the voting of shares of the Company’s Common Stock. In the event that the New Director is renominated to the Board in connection with the 2009 Annual Meeting (or in the event that no replacement director with similar qualifications as the New Director is suggested by the D.E. Shaw Entities after the New Director ceases to serve on the Board), the D.E. Shaw Entities agree (i) to withdraw any previously submitted notice of intention to nominate directors for election or notice of intention to present new business at the 2009 Annual Meeting, and (ii) not to engage or in any way participate, 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 or seek to advise, encourage or influence any person with respect to the voting of shares of the Company’s Common Stock.

5. The D. E. Shaw Entities agree to cause all shares of the Company’s Common Stock which they are entitled to vote at the 2008 Annual Meeting to be present, in person or by proxy, at the 2008 Annual Meeting and to vote all such shares of the Company’s Common Stock in favor of (i) the election of each of the nominees of the Board and (ii) the proposal to amend the Company’s Amended and Restated Certificate of Incorporation to increase the number of shares of common stock authorized for issuance by 175 million shares (the “2008 Proposal”). In the event that the New Director is renominated to the Board in connection with the 2009 Annual Meeting, the D. E. Shaw Entities agree to cause all shares of the Company’s Common Stock which they are entitled to vote at the 2009 Annual Meeting to be present, in person or by proxy, at the 2009 Annual Meeting and to vote all such shares of the Company’s Common Stock in favor of the election of each of the nominees of the Board; provided, however, that nothing herein shall limit the ability of the D. E. Shaw Entities to vote their voting securities on any matter submitted to a vote of the stockholders of the Company or announce its opposition to any Board-approved proposals, other than (i) the election of directors at the 2008 Annual Meeting, (ii) the election of directors at the 2009 Annual Meeting, if applicable, and (iii) the 2008 Proposal.

6. Notwithstanding the last sentence of paragraph 4 hereof or the last sentence of paragraph 5 hereof, the restrictions or proscriptions set forth in such sentences relating to the 2009 Annual Meeting shall not be applicable if either of the following events occur: (i) David Holveck shall cease to be the Chief Executive Officer of the Company or (ii) the Company receives an unsolicited bona fide offer (which offer is accompanied by evidence of fully committed financing from a nationally recognized financing source or is not subject to any financing condition) to acquire all of the outstanding shares of the Company’s Common Stock from a third party (the “Third Party”), which Third Party is not affiliated with any of the D. E. Shaw Entities and is not in any way acting as a “group” within the meaning of Rule 13d-5 or in concert with or participating with any of the D.E. Shaw Entities in connection with such offer, and the Third Party is soliciting proxies to elect one or more candidates to the Board at the 2009 Annual Meeting. In addition, the restrictions or proscriptions set forth in the last sentence of paragraph 4 and the last sentence of paragraph 5 shall not be applicable if the volume weighted average closing price per share of the Company’s Common Stock as reported on NASDAQ does not equal or exceed the Minimum Trading Price (as defined below) (the “Minimum Trading Price”) during any consecutive 15 day trading period beginning January 1, 2009 and ending on the later of March 31, 2009 and the day that is three days before the deadline for timely notice (the “2009 Nomination Deadline”) provided in Article II, Section 10 of the Company’s By-laws (the “Trading Period”). The Minimum Trading Price shall be $30 per share or such other price per share as may reflect appropriate adjustments in connection with stock splits, reverse stock splits, stock dividends or similar share adjustments for which the record dates occur at any time prior to the end of the Trading Period. In the event that the D.E. Shaw Entities are not subject to the restrictions of the last sentence of paragraph 4 or the last sentence of paragraph 5, before making a determination to solicit proxies in connection with the 2009 Annual Meeting, the D.E. Shaw Entities agree to take into consideration the effect that negative general economic conditions beyond the Company’s control affecting the trading markets generally or the specialty pharmaceutical industry generally (including the effect of governmental regulation applicable to the pharmaceutical industry, such as the adoption of price controls) have had on the trading price of the Company’s Common Stock. Notwithstanding the provisions of this paragraph, the D.E. Shaw Entities agree that they will not be entitled to solicit proxies in connection with the 2009 Annual Meeting if (i) the AMEX Pharmaceutical Index is down more than 10% based on the consecutive 10 day trading period beginning the date hereof and the consecutive 10 day trading period ending on the later of March 31, 2009 and the day that is three days before the 2009 Nomination Deadline and (ii) the share price of the Company’s Common Stock has outperformed such index by at least 15% based on the volume weighted average closing price per share of the Company’s Common Stock as reported on NASDAQ for the consecutive 10 day trading period beginning on the date hereof and the consecutive 10 day trading period ending on the later of March 31, 2009 and the day that is three days before the 2009 Nomination Deadline.

7. For so long as the D.E. Shaw Entities beneficially own more that 5% of the Company’s outstanding common stock, but in no event later than December 31, 2010, the D. E. Shaw Entities agree that, notwithstanding any contrary provisions in the Company’s By-laws, if the D.E. Shaw Entities seek to undertake a consent solicitation or call a special meeting for purposes of soliciting proxies in connection with removing one or more directors from the Company’s Board of Directors without cause or proposing directors for election to the Company’s Board of Directors, then the D.E. Shaw Entities will provide the Company with notice of such intent not less than 45 days before any special meeting at which such matter is to be considered and no less than 45 days before written consents are solicited in connection with any such proposal. To be valid, any such notice proposing directors for election to the Company’s Board of Directors shall include all information required to be included in an advance notice given pursuant to Article II, Section 10 of the Company’s By-laws. The Company agrees that, during the period commencing on the date notice is received by the Company pursuant to this Section and ending on the date the consent solicitation is completed or the special meeting is held, whichever the case may be, it shall not amend its Amended and Restated Certificate of Incorporation or its By-laws, if such amendment would have the effect of enjoining, prohibiting or restricting in any material way the D.E. Shaw Entities from proceeding with its solicitation.

8. Promptly following the execution of this letter agreement, the Company and the D. E. Shaw Entities shall jointly issue a mutually agreeable press release announcing the terms of this agreement, substantially in the form of Exhibit A hereto. Except for such press release and the Company’s earnings press release, the relevant sections of which have been previously provided to the D.E. Shaw Entities, neither the Company nor the D. E. Shaw Entities shall issue any press release or otherwise make any other public announcement with respect to this letter agreement or the matters contemplated hereby, except as required by law.

9. The Company and the D. E. Shaw Entities each acknowledge and agree that money damages would not be a sufficient remedy for any breach (or threatened breach) of this letter agreement by it and that, in the event of any breach or threatened breach hereof, the non-breaching party shall be entitled to seek injunctive and other equitable relief, without proof of actual damages, that the breaching party shall not plead in defense thereto that there would be an adequate remedy at law, and that the breaching party agrees to waive any applicable right or requirement that a bond be posted by the non-breaching party. Such remedies shall not be the exclusive remedies for a breach of this letter agreement, but will be in addition to all other remedies available at law or in equity.

10. This letter agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the principles of the conflicts of laws thereof. The parties hereby irrevocably submit to the exclusive jurisdiction of the courts of the State of Delaware and irrevocably and unconditionally waive any objection to the laying of venue of any action, suit, or proceeding arising out of this letter agreement in the courts of the State of Delaware or the United States of America located in Delaware, and further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum. This letter agreement constitutes the entire agreement among the parties with respect to the subject matter hereof. This letter agreement shall inure to the benefit of the parties hereto and their respective successors and assigns.

11. This letter agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement. One or more counterparts of this letter agreement may be delivered by telecopier or PDF electronic transmission, with the intention that they shall have the same effect as an original counterpart hereof.

Very truly yours,

ENDO PHARMACEUTICALS HOLDINGS INC.


By:	/s/ Roger H. Kimmel
	Name:	Roger H. Kimmel
	Title:	Chairman

Confirmed and Agreed to:

D. E. SHAW VALENCE PORTFOLIOS, L.L.C. (on behalf of itself and its affiliates that are members of the Section 13(d) Group with respect to the Common Stock of the Company)

By:	/s/ James Mackey
	Name:	James Mackey
	Title:	Authorized Signatory

Dated: April 29, 2008

EX-4.HTM 5 exhibit4.htm PRESS RELEASE exhibit4.htm

Exhibit 4

For Immediate Release	News Release


Endo Contact:	D.E. Shaw Contact:
Charles A. Rowland, Jr.	Finsbury Group:
610-558-9800	Andy Merrill / Tripp Kyle – New York
	andy.merrill@finsbury.com
	tripp.kyle@finsbury.com
	+1 212 303 7600

ENDO PHARMACEUTICALS AND THE D.E. SHAW GROUP AGREE

TO SETTLEMENT

CHADDS FORD, PA and NEW YORK, April 30, 2008 – Endo Pharmaceuticals Holdings, Inc. (NASDAQ: ENDP) and the D. E. Shaw group, a global investment management firm, today announced that

they have reached an agreement under which Endo’s Board of Directors will nominate William F. Spengler at the 2008 Annual Meeting of Stockholders to serve as a member of the Company’s Board of Directors. The D. E. Shaw group, which owns approximately 13.2 million shares of the Company’s common stock, has agreed to vote all of its shares in favor of the election of each of the Board’s nominees. The Board of Directors is being increased to eight members, effective June 26, 2008.

Mr. Spengler, 53, was until February 2008 Executive Senior Vice President and Chief Financial Officer at MGI Pharmaceuticals Inc., an oncology- and acute care- focused bio-pharmaceutical company, where he had worked since 2005. Prior to joining MGI Pharma, Mr. Spengler was Executive Vice President and Chief Financial Officer at Guilford Pharmaceuticals Inc. from July 2004 to October 2005.

“I am pleased that Bill Spengler will be joining the Endo board,” said Dave Holveck, Endo's Chief Executive Officer. “We look forward to his contribution to Endo’s future growth.”

“We are confident that Bill Spengler will be a valuable addition to Endo’s Board of Directors,” said Dr. James Mackey of the D. E. Shaw group. “As long-term shareholders, we look forward to maintaining a constructive dialogue with Mr. Holveck and have been impressed by the initial steps he has taken to position the company for growth and create value for shareholders.”

As a condition to the agreement, the D. E. Shaw group has agreed not to solicit proxies from the Company’s stockholders in connection with the election of directors or other matters until and, subject to certain other agreements, through the Company’s 2009 Annual Meeting of Stockholders. The Company’s agreement with the D. E. Shaw group will be filed on a Form 8-K and will be publicly available.

About Endo

Endo Pharmaceuticals Holdings Inc. is a specialty pharmaceutical company with market leadership in pain management. Through its wholly owned Endo Pharmaceuticals Inc. subsidiary, the company is engaged in the research, development, sale and marketing of branded and generic prescription pharmaceuticals used primarily to treat and manage pain. More information, including this and past press releases of Endo Pharmaceuticals Holdings Inc., is available at www.endo.com.

About the D. E. Shaw group

The D. E. Shaw group is a global investment and technology development firm with more than 1,300 employees; approximately $36 billion in aggregate investment capital as of April 1, 2008; and offices in North America, Europe, and Asia. Since its organization in 1988, the firm has earned an international reputation for financial innovation, technological leadership, and an extraordinarily distinguished staff.

Forward-Looking Statements

This press release contains information that includes or is based on “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. These statements, including estimates of future net sales, future expenses, future net income and future earnings per share, are subject to risks and uncertainties. Forward-looking statements include the information concerning the company’s possible or assumed results of operations. Also, statements including words such as “believes,” “expects,” “anticipates,” “intends,” “estimates,” “plan,” “will,” “may” or similar expressions are forward-looking statements. Endo has based these forward-looking statements on its current expectations and projections about the growth of its business, its financial performance and the development of its industry. Because these statements reflect Endo’s current views concerning future events, these forward-looking statements involve risks and uncertainties. Investors should note that many factors could affect Endo’s future financial results and could cause its actual results to differ materially from those expressed in forward-looking statements contained in this press release. Important factors that could cause its actual results to differ materially from the expectations reflected in the forward-looking statements in this press release include, but are not limited to: its ability to successfully develop, commercialize and market new products; timing and results of pre-clinical or clinical trials on new products; its ability to obtain regulatory approval of any of its pipeline products; competition for the business of its branded and generic products, and in connection with its acquisition of rights to intellectual property assets; market acceptance of its future products; government regulation of the pharmaceutical industry; its dependence on a small number of products; its dependence on outside manufacturers for the manufacture of its products; its dependence on third parties to supply raw materials and to provide services for certain core aspects of its business; new regulatory action or lawsuits relating to its use of narcotics in most of its core products; its exposure to product liability claims and product recalls and the possibility that the company may not be able to adequately insure itself; its ability to protect its proprietary technology; the successful efforts of manufacturers of branded pharmaceuticals to use litigation and legislative and regulatory efforts to limit the use of generics and certain other products; its ability to successfully implement its acquisition and in-licensing strategy; regulatory or other limits on the availability of controlled substances that constitute the active ingredients of some of its products and products in development; the availability of third-party reimbursement for its products; the outcome of any pending or future litigation or claims by the government; its dependence on sales to a limited number of large pharmacy chains and wholesale drug distributors for a large portion of its total net sales; significant litigation expenses to defend or assert patent infringement claims; any interruption or failure by its suppliers, distributors and collaboration partners to meet their obligations pursuant to various agreements with Endo; a determination by a regulatory agency that Endo is engaging in inappropriate sales or marketing activities, including promoting the “off-label” use of its products; existing suppliers become unavailable or lose their regulatory status as an approved source, causing an inability to obtain required components, raw materials or products on a timely basis or at commercially reasonable prices; the loss of branded product exclusivity periods and related intellectual property; and its exposure to securities that are subject to market risk.

The company does not undertake any obligation to update its forward-looking statements after the date of this Report for any reason, even if new information becomes available or other events occur in the future. You are advised, however, to consult any further disclosures we make on related subjects in our 10-K, 10-Q and 8-K reports to the Securities and Exchange Commission (or SEC). Also note that Endo provides the preceding cautionary discussion of risks, uncertainties and possibly inaccurate assumptions relevant to its business. These are factors that, individually or in the aggregate, the company believes could cause its actual results to differ materially from expected and historical results. Endo notes these factors for investors as permitted by the Private Securities Litigation Reform Act of 1995. You should understand that it is not possible to predict or identify all such factors. Consequently, you should not consider the preceding to be a complete discussion of all potential risks or uncertainties.

###

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