Exhibit 4.5




 




FIRST AMENDMENT TO RIGHTS AGREEMENT




 




This First Amendment (the “Amendment”) to

the Rights Agreement (the “Agreement”) entered into as of June 17, 2002, by and

between Amylin Pharmaceuticals, Inc., a Delaware

corporation (the “Company”), and American Stock Transfer &

Trust Company (the “Rights Agent”), is entered into as of December

13, 2002.




 




RECITALS




 




Whereas, Section 27 of the Agreement provides

that the Company and the Rights Agent shall, if the Company so directs,

supplement or amend any provision of the Agreement without the approval of any

holders of the Rights, any such supplement or amendment to be evidenced by a

writing signed by the Company and the Rights Agent;




 




Whereas, on

September 19, 2002, the Company entered into a Collaboration Agreement, a Loan

Agreement, a Milestone Conversion Agreement and a Stock Purchase Agreement

(collectively, the “Lilly Agreements”) and other related agreements with Eli

Lilly and Company, an Indiana corporation (“Lilly”), pursuant to which Lilly

will acquire certain shares of the common stock of the Company (the “Stock

Purchase”), with such number of shares not to exceed 19.9% of the shares of

Common Stock outstanding on September 19, 2002;




 




Whereas, the Company desires to amend the

Agreement in the manner set forth in this Amendment to provide that Lilly will

not be deemed an Acquiring Person pursuant to the Agreement as a result of any

Stock Purchase by Lilly under the Lilly Agreements, and the Company’s Board of

Directors has approved such amendment; and




 




Whereas, pursuant to Section 27 of the

Agreement, the Company has delivered to the Rights Agent a certificate signed

by the Chief Executive Officer of the Company certifying that the proposed

amendment of the Agreement is in compliance with the terms of Section 27 of the

Agreement;




 




Agreement




 




Now, Therefore, in

consideration of the benefits described in the Recitals hereto and the mutual promises hereinafter set forth, the

parties hereto agree as follows:




 




1.                                      Except

as otherwise defined herein, capitalized terms used but not defined herein

shall have the respective meanings given to them in the Agreement.




2.                                      Section

1(a) of the Agreement is hereby amended and restated in its entirety as

follows:




 




“(a)         ‘Acquiring

Person’ shall mean any Person (as such term is hereinafter

defined) who or which, together with all Affiliates and Associates (as such

terms are hereinafter defined) of such Person, shall be the Beneficial Owner

(as such term is hereinafter defined) of 15% or more of the Common Shares then

outstanding.  Notwithstanding the

foregoing, (A) the term Acquiring Person shall not include (i) the




 





























 




Company, (ii) any Subsidiary (as such term is

hereinafter defined) of the Company, (iii) any employee benefit or compensation

plan of the Company or any Subsidiary of the Company, or (iv) any entity

holding Common Shares for or pursuant to the terms of any such employee benefit

or compensation plan of the Company or any Subsidiary of the Company and (B) no

Person shall become an Acquiring Person either (x) as the result of an

acquisition of Common Shares by the Company which, by reducing the number of

shares outstanding, increases the proportionate number of shares beneficially

owned by such Person to 15% or more of the Common Shares then outstanding; provided, however,

that if a Person shall become the Beneficial Owner of 15% or more of the Common

Shares then outstanding by reason of share purchases by the Company and shall,

following written notice from, or public disclosure by the Company of such

share purchases by the Company, become the Beneficial Owner of any additional

Common Shares without the prior consent of the Company and shall then

Beneficially Own more than 15% of the Common Shares then outstanding, then such

Person shall be deemed to be an Acquiring Person, or (y) as the result of the

acquisition of Common Shares directly from the Company as long as, prior to any

acquisition of Common Shares directly from the Company, the Company has been

apprised by any such Person of the number of Common Shares beneficially owned

by such Person immediately prior to any such acquisition; provided, however, that if a

Person shall become the Beneficial Owner of 15% or more of the Common Shares

then outstanding by reason of share purchases directly from the Company and shall,

after that date, become Beneficial Owner of any additional Common Shares

without the prior written consent of the Company and shall then Beneficially

Own more than 15% of the Common Shares then outstanding, then such Person shall

be deemed to be an Acquiring Person or (z) if the Board of Directors determines

in good faith that a Person who would otherwise be an Acquiring Person, as

defined pursuant to the foregoing provisions of this paragraph (a), has become

such inadvertently, and without any intention of changing or influencing

control of the Company, and such Person promptly enters into an irrevocable

written commitment in favor of the Company to divest, and thereafter divests

(without retaining any power, including voting with respect to such Common

Shares), as promptly as practicable (as determined in good faith by the Board

of Directors), following receipt of written notice from the Company of such

event, of Beneficial Ownership of a sufficient number of Common Shares so that

such Person would no longer be an Acquiring Person, as defined pursuant to the

foregoing provisions of this paragraph (a), then such Person shall not be

deemed to be an Acquiring Person for any purposes of this Agreement; provided,

however, that if such Person shall again become the Beneficial Owner of 15% or

more of the Common Shares then outstanding, such Person shall be deemed an

Acquiring Person, subject to the exceptions set forth in this Section 1(a).




 




Notwithstanding the foregoing, neither Eli

Lilly and Company, an Indiana corporation (“Lilly”) nor any Affiliate or

Associate thereof shall be deemed to be an Acquiring Person for purposes of

this Agreement, but only to the extent that Lilly and any of its Affiliates and

Associates (i) Beneficially Own shares of the Company’s Common Shares as of the

date hereof or (ii) acquire additional shares of the Company’s Common Shares in

accordance with the terms of the Lilly Agreements.  In the event that Lilly or any Affiliate or Associate thereof

shall hold any additional shares of the Company’s Common Shares other than as

contemplated by the preceding sentence and




 




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such holdings, together with all other holdings of the Company’s Common

Shares shall exceed the limitations set forth in the preceding paragraph, then

Lilly or its Affiliate or Associate, as the case may be, shall be deemed an

Acquiring Person under this Agreement.”




 




3.                                      A

new Section 1(r) of Agreement shall be added to read as follows:




 




“(r)         ‘Lilly

Agreements’ shall mean the Collaboration Agreement, the Loan

Agreement, the Milestone Conversion Agreement and the Stock Purchase Agreement

between the Company and Eli Lilly and Company, an Indiana Corporation, each

dated as of September 19, 2002, and any amendments or supplements thereto.”




 




4.                                      This

Amendment shall be deemed to be a contract made under the laws of the state of

Delaware and for all purposes shall be governed by and construed in accordance

with the laws of such state applicable to contracts to be made and performed

entirely within such state.




 




5.                                      This

Amendment may be executed in two or more counterparts, each of which shall be

deemed an original, but all of which together shall constitute one and the same

instrument.




 




3





























 




The foregoing Amendment To The Rights Agreement is hereby

executed and consented to as of the date first above written.




 




 




	

  Amylin Pharmaceuticals, Inc.


  	

  American Stock Transfer & Trust Company


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

  By:


  	

  /s/ Joseph C. Cook, Jr.


  	

  By:


  	

  /s/ Paula Caroppoli


  
	

   


  	

   


  
	

   


  	

  Print Name:


  	

  Paula Caroppoli


  
	

   


  	

   


  
	

   


  	

  Title: 


  	

  Vice President


  
	

   


  	

   


  
						





 




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