Assumption Agreement



 Exhibit 10.1 
 ASSUMPTION AGREEMENT 
 This ASSUMPTION AGREEMENT (this “Assumption
Agreement”) is entered into as of June 29, 2012 (the “Effective Date”) by and between Amylin Pharmaceuticals, Inc., a corporation organized and existing under the laws of the State of Delaware
(“Amylin”) and Bristol-Myers Squibb Company, a Delaware Corporation (the “Company”). Amylin and the Company are each referred to herein by name or as a “Party” or, collectively, as the
“Parties.” 
 WHEREAS, Amylin and Eli Lilly and Company (“Lilly”) have entered into that
certain Settlement and Termination Agreement dated November 7, 2011 (such agreement, as it may be amended or otherwise modified from time to time, the “Settlement Agreement”), pursuant to which, among other things, Amylin is
obligated to pay certain amounts to Lilly; 
 WHEREAS, Amylin and the Company have entered into that certain Agreement And Plan
of Merger, by and among the Company, B&R Acquisition Company, a Delaware corporation and a wholly-owned Subsidiary of the Company and Amylin, dated as of the Effective Date (the “Amylin/Company Agreement”); 

WHEREAS, Section 13.17 of the Settlement and Termination Agreement provides that in the event of a Transfer Trigger Event referenced
in subsections (i) or (ii) of the definition thereof, Amylin shall cause any successor, assignee or transferee to assume all of Amylin’s obligations to Lilly pursuant to the Settlement Agreement and the Note and the Security Agreement
(each as defined in the Settlement Agreement); and 
 WHEREAS, as contemplated by the Settlement Agreement, Amylin now desires
for the Company to assume, and the Company now desires to assume, in each case, with effect as of the Acceptance Time (as defined in the Amylin/Company Agreement), the obligations of Amylin under the Settlement Agreement, the Note and the Security
Agreement, all on the terms set forth herein. 
 NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties intending to be legally bound do hereby agree as follows: 

 

	1.	All capitalized terms used but not defined herein shall have the meanings set forth in the Settlement Agreement. 


 

	2.	The Company hereby assumes and agrees, with effect as of the Acceptance Time (as defined in the Amylin/Company Agreement), to satisfy, perform, pay and discharge when
and as due any and all of Amylin’s covenants, agreements and obligations, whether now existing or hereafter arising, and whether absolute, contingent, matured or unmatured, under the Settlement Agreement, the Note and the Security Agreement.


  

	3.	 Notwithstanding anything to the contrary herein, this Assumption Agreement shall terminate and the Company shall have no further obligations under this
Assumption Agreement in the 










	 	
event of termination of the Amylin/Company Agreement in accordance with its terms; provided that, as of the time of such termination, the Acceptance Time has not yet occurred.


  

	4.	The Company acknowledges and agrees that Lilly is an express third party beneficiary to this Assumption Agreement and that Lilly shall have the right to enforce all
obligations of Amylin and the Company hereunder, and Amylin and the Company shall not amend this Assumption Agreement without the prior written consent of Lilly. 


 

	5.	This Assumption Agreement shall be construed in accordance with, and governed by, the laws of the State of New York, without giving effect to any conflicts of laws
principles that might otherwise refer construction or interpretation of this Assumption Agreement to the substantive law of another jurisdiction. 

  

	6.	Neither Amylin nor the Company may assign or otherwise transfer this Assumption Agreement or any right or obligation hereunder without the express written consent of
Lilly (such consent not to be unreasonably conditioned, withheld or delayed). 

  

	7.	This Assumption Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Assumption Agreement may be executed by facsimile or other electronic signatures and such signatures will be deemed to bind each Party as if they were original signatures. 


 

	8.	Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as may be necessary or appropriate in order to carry out
the purposes and intent of this Assumption Agreement. 

  

	9.	All notices which are required or permitted hereunder will be in writing and sufficient if delivered personally or sent by nationally-recognized overnight courier (with
confirmation of delivery) addressed as follows: 

 if to Amylin, to: Amylin Pharmaceuticals, Inc. 

9360 Towne Centre Drive 
 San Diego, California 92121 
 Attn: Chairman and Chief Executive Officer

 with a copy to (which shall not constitute notice): 
 Amylin Pharmaceuticals, Inc. 
 9360 Towne Centre Drive 

San Diego, California 92121 
 Attn: General Counsel 
 and:
                   Skadden, Arps, Slate, Meagher & Flom LLP 
 Four Times Square 
 New York, New York 10036-6522








 
        Attn: Nancy Lieberman, Esq. 
          Ann Beth Stebbins, Esq. 
 E-mail: nancy.lieberman@skadden.com 

             annbeth.stebbins@skadden.com 

if to the Company, to: Bristol-Myers Squibb Company 
 345 Park Avenue 
 New York, New York 10154 

Attn: Senior Vice President, General Counsel and 

          Corporate Secretary 

E-mail: sandra.leung@bms.com 
 with copies to (which shall not constitute notice): 
 Bristol-Myers
Squibb Company 
 Route 206 and Province Line Road 

Princeton, New Jersey 08543 
 Attn: Vice President and Assistant General Counsel, 
 Transactional
Practice Group, Corporate Development 
 E-mail: joseph.campisi@bms.com 

and:                   Kirkland & Ellis LLP 

601 Lexington Avenue 
 New York, New York 10022 
 Attn: David Fox 

         Daniel Wolf 

E-mail: david.fox@kirkland.com 
              daniel.wolf@kirkland.com 
 in each case, with a copy to: 
 Eli Lilly and Company 

Lilly Corporate Center 
 Indianapolis, IN 46285 
 Attention: General Counsel 

and with a copy to: 
 Covington & Burling LLP 
 1201 Pennsylvania Ave., N.W.

 Washington, D.C. 20004 

Attn: John A. Hurvitz 
 or to such other address as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith. Any such notice will be deemed to have been given when
delivered if personally delivered or on the Business Day after dispatch if 







 sent by nationally-recognized overnight courier (with confirmation of delivery). 

 

	10.	If any one or more of the provisions of this Assumption Agreement is held to be invalid or unenforceable by any court of competent jurisdiction from which no appeal can
be or is taken, the provision shall be considered severed from this Assumption Agreement and shall not serve to invalidate any remaining provisions hereof. The Parties shall use their best efforts in good faith to replace any invalid or
unenforceable provision with a valid and enforceable one such that the objectives contemplated by the Parties when entering this Assumption Agreement may be realized. 


 

	11.	Ambiguities, if any, in this Assumption Agreement shall not be construed against any Party, irrespective of which Party may be deemed to have authored the ambiguous
provision. 

  

	12.	Any delay in enforcing a Party’s rights under this Assumption Agreement or any waiver as to a particular default or other matter shall not constitute a waiver of
such Party’s rights to the future enforcement of its rights under this Assumption Agreement, excepting only as to an express written and signed waiver as to a particular matter for a particular period of time. 


[Signature Page Follows] 







 IN WITNESS THEREOF, the Parties have executed this Assumption Agreement as of the Effective Date.

  

			
	AMYLIN PHARMACEUTICALS, INC.
		
	By:	 	/s/ Daniel M. Bradbury
	Name:	 	Daniel M. Bradbury
	Title:	 	President and Chief Executive Officer
	
	BRISTOL-MYERS SQUIBB COMPANY
		
	By:	 	/s/ Demetrios Kydonieus
	Name:	 	Demetrios Kydonieus
	Title:	 	Vice President, Strategy, Alliances & Transactions