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EXHIBIT 4.2
STOCK PURCHASE AGREEMENT
OF
AMYLIN PHARMACEUTICALS, INC.
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TABLE OF CONTENTS
PAGE
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1. AUTHORIZATION OF SALE OF THE SHARES..................................................1
2. AGREEMENT TO SELL AND PURCHASE THE SHARES............................................1
3. DELIVERY OF THE SHARES AT THE CLOSING................................................1
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.............................2
4.1 Organization and Qualification................................................2
4.2 Due Execution, Delivery and Performance of the Agreements.....................2
4.3 Issuance, Sale and Delivery of the Shares.....................................2
4.4 Public Information............................................................3
4.5 Eligibility for Form S-3......................................................3
4.6 No Material Change............................................................3
4.7 Use of Proceeds...............................................................3
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER...........................3
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS...............................5
7. REGISTRATION OF THE COMMON STOCK; COMPLIANCE WITH THE SECURITIES ACT.................5
7.1 Registration Procedures and Expenses..........................................5
7.2 Transfer of Shares After Registration.........................................6
7.3 Indemnification...............................................................6
7.4 Termination of Conditions and Obligations.....................................8
8. BROKER'S FEE.........................................................................9
9. NOTICES..............................................................................9
10. CHANGES.............................................................................10
11. HEADINGS............................................................................10
12. SEVERABILITY........................................................................10
13. GOVERNING LAW.......................................................................10
14. COUNTERPARTS........................................................................10
15. REMEDIES............................................................................10
16. SUCCESSORS AND ASSIGNS..............................................................10
17. FURTHER ACTIONS.....................................................................10
18. CONFIDENTIAL DISCLOSURE AGREEMENT...................................................11
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of March 22,
1999 between AMYLIN PHARMACEUTICALS, INC., a Delaware corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and the purchaser whose name and address are
set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchaser agree as follows:
1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and conditions of
this Agreement, the Company has authorized the sale of up to one hundred
twenty-five thousand (125,000) shares of Series A Preferred Stock of the Company
(the "Shares") at a price of $120.00 per Share.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES. At the Closing (as defined in
Section 3), the Company will sell to the Purchaser, and the Purchaser will buy
from the Company, upon the terms and conditions hereinafter set forth, the
number of Shares set forth next to Purchaser's name on the signature page
hereof. The Shares shall have the rights, preferences, privileges and
restrictions set forth in the Company's Certificate of Designation of 5% Series
A Convertible Preferred Stock, in the form attached hereto as EXHIBIT A (the
"Certificate of Designation").
3. DELIVERY OF THE SHARES AT THE CLOSING. The completion of the purchase and
sale of the Shares to be issued pursuant to this Agreement (the "Closing") shall
occur (i) upon receipt by the Company of (A) a copy of this Agreement which has
been executed on Purchaser's behalf, (B) a completed Stock Certificate
Questionnaire, the form of which is attached hereto as EXHIBIT B, and (C) the
aggregate purchase price for the Shares, or (ii) following the occurrence of the
actions set forth in clause (i) above on such other date as may be agreed to by
the Company and the Purchaser. At the Closing, the Company shall deliver to the
Purchaser or the Purchaser's custodian bank, in accordance with the Purchaser's
delivery instructions, (A) a copy of this Agreement which has been executed on
behalf of the Company, and (B) one or more stock certificates registered in the
name of the Purchaser, or in such nominee name(s) as designated by the
Purchaser, representing the number of Shares referred to in Section 2 above. The
name(s) in which the stock certificates are to be issued shall be set forth in
the Stock Certificate Questionnaire attached hereto as EXHIBIT B, as completed
by Purchaser. The Company's obligation to complete the purchase and sale of the
Shares and deliver such stock certificate(s) to the Purchaser at the Closing
shall be subject to the following conditions, any one or more of which may be
waived in writing by the Company: (a) subject to delivery of the Share
certificates to the Purchaser or Purchaser's custodian bank, receipt by the
Company of immediately available funds, by check or wire transfer, in the full
amount of the purchase price for the Shares being purchased hereunder; (b) the
accuracy of the representations and warranties made by the Purchaser herein as
of the Closing; and (c) the fulfillment of those undertakings of
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the Purchaser to be fulfilled prior to the Closing. The Purchaser's obligation
to accept delivery of such stock certificate(s) and to pay for the Shares
evidenced thereby shall be subject to the following conditions: (a) the accuracy
of the representations and warranties made by the Company herein as of the
Closing; and (b) the fulfillment of those undertakings of the Company to be
fulfilled prior to the Closing.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company hereby
represents and warrants to, and covenants with, the Purchaser as of the date of
this Agreement as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to conduct its
business as currently conducted.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company's execution, delivery and performance of this Agreement (a) has been
duly authorized by all requisite corporate action by the Company, and (b) will
not violate the Amended and Restated Certificate of Incorporation or Bylaws of
the Company, each as amended to date, or violate or result in a breach of or
constitute a default under any provision of any material indenture, mortgage,
agreement, contract or other material instrument to which the Company or any
subsidiary is a party or by which the Company or any subsidiary or any of their
respective properties or assets is bound as of the date hereof. Upon execution
and delivery, and assuming the valid execution hereof by the Purchaser, this
Agreement will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as the indemnification agreements of the Company in
Section 7.4 hereof may be legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The authorized capital
stock of the Company consists of one hundred million (100,000,000) shares of
Common Stock, par value one-tenth of one cent ($.001) per share, thirty-six
million seven hundred ninety-seven thousand eight hundred six (36,797,806)
shares of which are issued and outstanding as of March 15, 1999, five million
seven hundred eight-seven thousand one hundred eighty-two (5,787,182) shares of
which are subject to outstanding options as of March 15, 1999, one million four
hundred forty-two thousand forty-four (1,442,044) shares of which are reserved
for future issuance to employees, directors and consultants pursuant to the
Company's stock plans, including the Company's 1991 Stock Option Plan, the
Company's Non-Employee Directors' Stock Option Plan, the Company's Employee
Stock Purchase Plan, the Company's Directors' Deferred Compensation Plan and the
Company's Employee Phantom Stock Salary Deferral Plan as of March 15, 1999, and
one million five hundred fifty thousand nine hundred fifty (1,550,950) shares of
which are subject to outstanding warrants, and seven million five hundred
thousand (7,500,000) shares of Preferred Stock, par value one-tenth of one cent
($.001) per share, one hundred twenty-five thousand (125,000) of which are
designated Series A Preferred Stock, none of which, prior to the Closing, are
issued and outstanding. All issued and outstanding shares of the Company's
Common Stock have been duly authorized and validly issued, and are fully paid
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and nonassessable. The Company will take all reasonable measures to ensure that,
at all times, a sufficient number of shares of its Common Stock are reserved for
issuance upon conversion of the Shares (the "Conversion Shares"). When issued,
delivered to Purchaser or Purchaser's custodian bank and paid for by Purchaser
in accordance with the terms and conditions of this Agreement, the Shares to be
sold hereunder will be validly issued, fully paid and nonassessable and will be
delivered by the Company free and clear of all liens, pledges, claims,
encumbrances, security interests or other restrictions, except for restrictions
on transfer imposed to ensure compliance with the Securities Act of 1993, as
amended (the "Securities Act"). When issued and delivered upon conversion of the
Shares in accordance with the terms and conditions of the Certificate of
Designation, the Conversion Shares and any shares of Common Stock issued as
dividends upon the Shares (the "Dividend Shares") will be validly issued, fully
paid and nonassessable and will be delivered by the Company free and clear of
all liens, pledges, claims, encumbrances, security interests or other
restrictions, except for restrictions on transfer imposed to ensure compliance
with the Securities Act.
4.4 PUBLIC INFORMATION. The Company represents that it has delivered to
Purchaser copies of the Company's: (i) Annual Report on Form 10-K for the year
ended December 31, 1997; (ii) Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998, and September 30, 1998; (iii) Registration
Statement on Form S-3 (Registration No. 333-58831), as amended; and (iv) press
releases since September 30, 1998. All of the foregoing public documents are
collectively referred to herein as the "Public Documents."
4.5 ELIGIBILITY FOR FORM S-3. The Company represents and warrants that
it meets the requirements for the use of Form S-3 for registration of the sale
by the Purchaser of the Conversion Shares and any Dividend Shares, and the
Company shall file all reports required to be filed by the Company with the
Securities and Exchange Commission (the "Commission") in a timely manner and
take all other necessary action so as to maintain such eligibility for the use
of Form S-3.
4.6 NO MATERIAL CHANGE. As of the date hereof, there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition, results of operations or prospects
of the Company since December 31, 1998.
4.7 USE OF PROCEEDS. The Company shall use the proceeds from the sale of
the Shares for working capital purposes.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
The Purchaser represents and warrants to, and covenants with, the
Company as follows:
5.1 INVESTMENT REPRESENTATIONS. The Purchaser represents and warrants
to, and covenants with, the Company that: (i) the Purchaser, taking into account
the personnel and resources it can practically bring to bear on the purchase of
the Shares contemplated hereby, is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
shares presenting an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems relevant
in making an
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informed decision to purchase the Shares, including all of the Company's Public
Documents; (ii) the Purchaser is acquiring the number of Shares referred to in
Section 2 above for its own account for investment only and with no present
intention of distributing any of such Shares, Conversion Shares or Dividend
Shares, if any, or any arrangement or understanding with any other persons
regarding the distribution of such Shares, Conversion Shares or Dividend Shares;
(iii) the Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire attached hereto as EXHIBIT B and the information
provided therein by Purchaser is true and correct to the best knowledge of the
Purchaser as of the date hereof; (iv) the Purchaser has, in connection with its
decision to purchase the number of Shares set forth in Section 2 above, relied
solely upon the information delivered to the Purchaser as described in clause
(i) above and the representations and warranties of the Company contained
herein; and (v) the Purchaser is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
5.2 REQUISITE POWER AND AUTHORITY. The Purchaser further represents and
warrants to, and covenants with, the Company that (i) the Purchaser has full
right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and (ii) upon the execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Purchaser in Section 7.4
hereof may be legally unenforceable.
5.3 RULE 144. Purchaser acknowledges and agrees that the Shares acquired
by Purchaser hereunder, as well as the Conversion Shares and any Dividend
Shares, must be held indefinitely unless they are subsequently registered under
the Securities Act or an exemption from such registration is available.
Purchaser has been advised or is aware of the provisions of Rule 144 promulgated
under the Securities Act, which permits limited resale of securities in a
private placement subject to the satisfaction of certain conditions, including,
among other things: the availability of certain current public information about
the Company, the resale occurring not less than one year after a party has
purchased and paid for the security to be sold, the sale being made through an
unsolicited "broker's transaction" or in transactions directly with a market
maker (as said term is defined under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) and the number of shares being sold during any
three-month period not exceeding specified limitations.
5.4 COVENANTS. The Purchaser hereby covenants with the Company as
follows: (i) prior to the effective date of the Registration Statement
referenced in Section 7.1(a) below (the "Effective Date"), the Purchaser shall
not transfer any Shares, Conversion Shares or Dividend Shares except in
compliance with the Securities Act and the rules and regulations promulgated
thereunder, and any transferee of Shares, Conversion Shares or Dividend Shares
prior to the Effective Date shall agree in advance in a writing acceptable to
the Company to be subject to all of the provisions of this Agreement with
respect to the Shares, Conversion Shares
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or Dividend Shares; and (ii) commencing as of the Effective Date, the Purchaser
shall not make any sale of the Conversion Shares or the Dividend Shares, if any,
without effectively causing the prospectus delivery requirement under the
Securities Act to be satisfied, and the Purchaser acknowledges and agrees that
on and after the Effective Date, such Conversion Shares or the Dividend Shares,
if any, are not transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Conversion Shares or the Dividend
Shares, if any, is accompanied by a separate purchaser's certificate: (i) in the
form of EXHIBIT C hereto, (ii) executed by the Purchaser or by an officer of, or
other authorized person designated by, the Purchaser, and (iii) to the effect
that (A) the Conversion Shares or the Dividend Shares, if any, have been sold in
accordance with the Registration Statement and (B) the requirement of delivering
a current prospectus has been satisfied. The Purchaser acknowledges that there
may occasionally be times when the Company must suspend the use of the
prospectus forming a part of the Registration Statement until such time as an
amendment to the Registration Statement has been filed by the Company and
declared effective by the Securities and Exchange Commission (the "Commission"),
or until such time as the Company has filed an appropriate report with the
Commission pursuant to the Securities Exchange Act of 1934, as amended. The
Purchaser hereby covenants that it will not sell any Conversion Shares or
Dividend Shares, if any, pursuant to said prospectus during the period
commencing at the time at which the Company gives the Purchaser notice of the
suspension of the use of said prospectus and ending at the time the Company
gives the Purchaser notice that the Purchaser may thereafter effect sales
pursuant to said prospectus. The Purchaser further covenants to promptly notify
the Company of the sale of any of its Conversion Shares or Dividend Shares, if
any.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Purchaser herein and
in the certificates for the Shares delivered pursuant hereto shall survive the
execution of this Agreement, the delivery to the Purchaser of the Shares being
purchased and the payment therefor.
7. REGISTRATION OF THE COMMON STOCK; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) within the earlier of (i) 30 days following the receipt by
the Company of a notice of conversion of the Series A Shares from the Purchaser,
(ii) 10 days following the automatic conversion of the Series A Shares and (iii)
10 days following the first payment by the Company of a dividend on the Series A
Shares in the form of common stock, in each case pursuant to the Certificate of
Designation, prepare and file with the Commission a registration statement on
Form S-3 (the "Registration Statement") in order to register with the Securities
and Exchange Commission (the "Commission") the sale of all the Conversion Shares
and Dividend Shares, if any (collectively, the "Registrable Securities") by the
Purchaser from time to time through underwriters, agents or otherwise, in
negotiated or market transactions or through the automated quotation system of
Nasdaq or the facilities of any national securities exchange on which the
Company's Common Stock is then traded or in privately negotiated transactions or
pursuant to such other method or methods of distribution as Purchaser may
require. It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section
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7.1 that the Purchaser shall furnish to the Company such information regarding
itself, the Registrable Securities to be sold by Purchaser, and the intended
method of disposition of such securities as shall be required to effect the
registration of the Registrable Securities;
(b) use reasonable efforts, subject to the receipt of necessary
information from the Purchasers, to cause the Registration Statement to become
effective as soon as commercially practicable following the filing thereof with
the Commission;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith and take such other actions as may be necessary to keep the
Registration Statement continually effective and available for use for a period
of two years following the Closing (the "Registration Period") or, if earlier,
until all of the Registrable Securities have been sold pursuant thereto;
(d) furnish to the Purchaser with respect to the Registrable
Securities registered under the Registration Statement such number of copies of
prospectuses and preliminary prospectuses in conformity with the requirements of
the Securities Act, in order to facilitate the public sale or other disposition
of all or any of the Registrable Securities by the Purchaser; provided, however,
that the obligation of the Company to deliver copies of prospectuses or
preliminary prospectuses to the Purchaser shall be subject to the receipt by the
Company of reasonable assurances from the Purchaser that the Purchaser will
comply with the applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with any use of
such prospectuses or preliminary prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(f) bear all expenses incurred by the Company in connection with
the procedures in paragraphs (a) through (e) of this Section 7.1 and the
registration of the Registrable Securities pursuant to the Registration
Statement.
7.2 TRANSFER OF SHARES AFTER REGISTRATION. The Purchaser agrees that it
will promptly notify the Company of any changes in the material information set
forth in the Registration Statement regarding the Purchaser or its plan of
distribution with respect to the Registrable Securities, as applicable.
7.3 INDEMNIFICATION.
(a) the term "Selling Stockholder" shall mean the Purchaser and,
if the Purchaser is an institution, the Purchaser's directors or trustees,
officers and employees and each person who controls the Purchaser within the
meaning of the Securities Act;
(b) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
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(c) the term "untrue statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged omission to
state in the Registration Statement a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling Stockholder from
and against any losses, claims, damages or liabilities to which such Selling
Stockholder may become subject (under the Securities Act or otherwise) insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of, or are based upon, any untrue statement of a
material fact contained in the Registration Statement on the Effective Date
thereof, or arise out of any failure by the Company to fulfill any undertaking
included in the Registration Statement, and the Company will reimburse such
Selling Stockholder for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any such action,
proceeding or claim; provided, however, that the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability arises
out of, or is based upon, an untrue statement made in such Registration
Statement in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Selling Stockholder specifically for use
in preparation of the Registration Statement, or the failure of such Selling
Stockholder to comply with the covenants and agreements contained in Section 5
or 7.2 hereof respecting sale of the Registrable Securities or any statement or
omission in any prospectus that is corrected in any subsequent prospectus that
was delivered to the Purchaser prior to the pertinent sale or sales by the
Purchaser.
The Purchaser agrees to indemnify and hold harmless the Company (and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, each officer of the Company who signs the Registration Statement
and each director of the Company) from and against any losses, claims, damages
or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 5 or 7.2 hereof
respecting sale of the Registrable Securities, or any untrue statement of a
material fact contained in the Registration Statement on the Effective Date if
such untrue statement was made in reliance upon and in conformity with written
information furnished by or on behalf of the Purchaser specifically for use in
preparation of the Registration Statement, and the Purchaser will reimburse the
Company (or such officer, director or controlling person, as the case may be),
for any legal or other expenses reasonably incurred in investigating, defending
or preparing to defend any such action, proceeding or claim. In no event shall
the liability of the Purchaser hereunder be greater in amount than the dollar
amount of the gross proceeds received by the Purchaser upon the sale of
Registrable Securities giving rise to such indemnification obligation.
Promptly after receipt by any indemnified person of a notice of a claim or the
beginning of any action in respect of which indemnity is to be sought against an
indemnifying person pursuant to this Section 7.3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the commencement
of such action, and, subject to the provisions hereinafter stated, in case any
such action shall be brought against an indemnified person and such indemnifying
person shall have been notified thereof, such indemnifying person shall be
entitled to participate
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therein, and, to the extent it shall wish, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified person. After notice from
the indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
If the indemnification provided for in this Section 7.3 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect to
any losses, claims, damages or liabilities referred to herein, the indemnifying
party, in lieu of indemnifying such indemnified party thereunder, shall to the
extent permitted by applicable law contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the act or omission that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by a court of law by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, that in no event shall any contribution by Purchaser hereunder exceed
the gross proceeds from the offering received by such Purchaser.
The obligations of the Company and Purchaser under this Section 7.3 shall
survive completion of any offering of Registrable Securities in a Registration
Statement and the termination of this Agreement. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all liability
in respect to such claim or litigation.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under this
Section 7.3 to the fullest extent permitted by law; provided, however, that (i)
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any seller
of Conversion Shares or Dividend Shares who was not guilty of such fraudulent
misrepresentation, and (ii) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Conversion Shares or
Dividend Shares shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Conversion Shares or Dividend
Shares.
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7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. Notwithstanding anything
stated herein to the contrary, the conditions precedent imposed by Section 5 or
this Section 7 upon the transferability of the Shares, Conversion Shares and
Dividend Shares shall cease and terminate as to any particular number of the
Shares, Conversion Shares or Dividend Shares, when such Conversion Shares or
Dividend Shares, shall have been effectively registered under the Securities Act
and sold or otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such or at such
time as an opinion of counsel satisfactory to the Company shall have been
rendered to the effect that such conditions are not necessary in order to comply
with the Securities Act.
The rights of the Purchaser hereunder, including the right to have the Company
register the Conversion Shares and Dividend Shares, if any, pursuant to this
Agreement, shall be automatically assigned by each Purchaser to any transferee
of all or any portion of the Shares, the Conversion Shares, or the Dividend
Shares, if any, if: (a) the Purchaser agrees in writing with the transferee or
assignee to assign such rights, and a copy of such agreement is furnished to the
Company within a reasonable time after such assignment, (b) the Company is,
within a reasonable time after such transfer or assignment, furnished with
written notice of (i) the name and address of such transferee or assignee, and
(ii) the securities with respect to which such registration rights are being
transferred or assigned, (c) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act or applicable state securities laws, (d) at or before the
time the Company receives the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing for the benefit of the
Company to be bound by all of the provisions contained herein, and (e) such
transfer shall have been made in accordance with the applicable requirements of
the this Agreement.
8. BROKER'S FEE. Each of the parties hereto hereby represents that on the basis
of any actions and agreements by it, there are no brokers or finders entitled to
compensation in connection with the sale of Shares to the Purchaser.
9. NOTICES. All notices, requests, consents and other communications hereunder
shall be in writing, shall be sent by facsimile or mailed by first class
registered or certified airmail, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so sent by facsimile or
mailed and shall be delivered as follows:
(A) if to the Company, to:
Amylin Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
with a copy so mailed to:
▇▇▇▇▇▇ Godward LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
9.
12
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth on the
signature page of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
10. CHANGES. This Agreement may not be modified or amended except pursuant to an
instrument in writing signed by the Company and the Purchaser.
11. HEADINGS. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of
this Agreement.
12. SEVERABILITY. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents.
14. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument.
15. REMEDIES. In addition to being entitled to exercise all rights and remedies
provided herein or granted by law for any breach by the Company hereunder, the
Purchaser will be entitled to specific performance of its rights under this
Agreement. In that regard, the Company acknowledges and agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agrees to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
16. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
Notwithstanding anything to the contrary contained herein, including, without
limitation, the rights of Purchaser hereunder shall be assignable to and
exercisable by a bona fide pledgee of the Shares, Conversion Shares, Warrants or
Warrant Shares in connection with Purchaser's margin or brokerage accounts.
17. FURTHER ACTIONS. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other
party may reasonably request in transactions of this nature in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
10.
13
18. CONFIDENTIAL DISCLOSURE AGREEMENT. Notwithstanding any provision of this
Agreement to the contrary, the Confidential Disclosure Agreement previously
executed by the Company and the Purchaser in connection with the transactions
contemplated by this Agreement shall remain in full force and effect in
accordance with its terms following the execution of this Agreement and the
consummation of the transactions contemplated hereby.
11.
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
AMYLIN PHARMACEUTICALS, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Vice President and
General Counsel
PURCHASER
By: Number of Shares:
-------------------------------- -----------------------
Name:
------------------------------
Title:
-----------------------------
Notices to be sent to:
-----------------------------------
-----------------------------------
-----------------------------------
List of Attachments
-------------------
EXHIBIT A - CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK
EXHIBIT B - STOCK CERTIFICATE AND WARRANT QUESTIONNAIRE
EXHIBIT C - PURCHASER'S CERTIFICATE
12.
15
EXHIBIT A
CERTIFICATE OF DESIGNATION OF SERIES A PREFERRED STOCK
16
EXHIBIT B
AMYLIN PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Stock Purchase Agreement, please provide us
with the following information:
1. The exact name that your Shares are to be registered in (this is the
name that will appear on your stock certificate(s)). You may use a
nominee name if appropriate:____________________________________________
2. The relationship between the Purchaser of the Shares and the Registered
Holder listed in response to item 1 above:______________________________
3. The mailing address of the Registered Holder listed in response to item
1 above:________________________________________________________________
4. The Social Security Number or Tax Identification Number of the
Registered Holder listed in the response to item 1 above:_______________
17
EXHIBIT C
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
________________________________ hereby certificates that he/she [said
institution] is the Purchaser of the shares evidenced by the attached
certificate, and as such, sold such shares on ____________________________ in
accordance with registration statement number
__________________________________________________ and the requirement of
delivering a current prospectus and current annual and quarterly reports (Forms
10-K and 10-Q) by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser (Individual or Institution):__________________________________
Name of Individual representing Purchaser
(if an Institution)_____________________________________________________________
Title of Individual representing Purchaser
(if an Institution)_____________________________________________________________
Signature by:
Individual Purchaser or Individual
Representing Purchaser:_________________________________________________________