**Exhibit10.1**

 

**AMYLINPHARMACEUTICALS, INC. 2009 EQUITY INCENTIVE PLAN**

 

**RESTRICTED STOCK UNIT AWARDAGREEMENT**

 

Pursuant to the Restricted Stock Unit Award GrantNotice (the ***“GrantNotice”***) and this RestrictedStock Unit Award Agreement (the ***“Agreement”***)(collectively, the ***“Award”***) and in considerationof your services rendered or to be rendered, as applicable, AmylinPharmaceuticals, Inc. (the ***“Company”***)has granted you a Restricted Stock Unit Award under its 2009 Equity IncentivePlan (the ***“Plan”***).  Definedterms not explicitly defined in this Agreement but defined in the Grant Noticeor the Plan shall have the same definitions as in the Grant Notice or the Plan,as applicable.

 

Thedetails of your Award, in addition to those set forth in the Grant Notice andthe Plan, are as follows:

 

**1.****                                     ****GRANT OFTHE AWARD.****   **This Awardrepresents the right to be issued on a future date the number of shares of the Company’s Common Stock as indicated in theGrant Notice.  As of the Date ofGrant, the Company will credit to a bookkeeping account maintained by theCompany for your benefit (the “***Account***”)the number of shares of Common Stock subject to the Award.  ThisAward was granted in consideration of your services to the Company.  Except as otherwise provided herein, you willnot be required to make any payment to the Company (other than past and futureservices to the Company) with respect to your receipt of the Award, the vestingof the shares or the delivery of the underlying Common Stock.

 

**2.****                                     ****VESTING**.

 

**(a)****                                 **Subject to thelimitations contained herein, your Award will vest, if at all, in accordancewith the vesting criteria provided in the Grant Notice, provided that no shareswill vest following a termination of your Continuous Service.  Upon such termination of your Continuous Service, theAward shall terminate and the shares credited to the Account that were notvested on the date of such termination will be forfeited at no cost to theCompany and you will have no further right, title or interest in or to suchunderlying shares of Common Stock or the Award.

 

**(b)****                                 **The Company will prepare financialstatements for the 2011 calendar year which will be audited by the Company’sindependent auditors during the first quarter of 2012.  If the information derived from the final 2011financial statements as audited by the Company’s independent auditors does notreflect that the 2011 Performance Goal has been attained, unless otherwisedetermined by the Compensation Committee, the Award shall terminate and theshares credited to the Account that were not vested on such date will beforfeited at no cost to the Company and you will have no further right, titleor interest in or to such underlying shares of Common Stock or the Award.  For purposes of determining whether the 2011Performance Goal has been attained, “non-GAAP operating income” shall bedefined as operating loss for the year ended December 31, 2011, asreported in the Company’s audited financials statements 

 

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included in the Company’s2011 Annual Report of Form 10-K, presented in accordance with GenerallyAccepted Accounting Principles (“GAAP”), adjusted for noncash items consistingof equity compensation, depreciation and amortization, amortization of deferredrevenue and also adjusted for restructuring and other charges (reported inaccordance with ASC 420-10-S99) and any charges that qualify for treatment as “UnusualItems” (in accordance with ASC 225-20-45-16) and are reported as a separatecomponent of income from continuing items. The ending result of these adjustments to GAAP operating loss mustreflect an income position in order to meet the definition of non-GAAPoperating income.

 

**3.****                                     ****NUMBER OFSHARES**.

 

**(a)****                                 **The number of shares of CommonStock subject to your Award as referenced in your Grant Notice may be adjusted fromtime to time for capitalization adjustments, as set forth in Section 11 ofthe Plan.

 

**(b)****                                 **Any shares, cash or other property thatbecomes subject to the Award pursuant to this Section 3, if any, shall besubject, in a manner determined by the Board, to the same forfeiturerestrictions, restrictions on transferability, and time and manner of deliveryas applicable to the other shares covered by your Award.

 

**(c)****                                 **Notwithstanding the provisions of this Section 3,no fractional shares or rights for fractional shares of Common Stock shall becreated pursuant to this Section 3. The Board shall, in its discretion, determine an equivalent benefit forany fractional shares or fractional shares that might be created by theadjustments referred to in this Section 3.

 

**4.****                                     ****SECURITIESLAW COMPLIANCE**.  Notwithstandinganything to the contrary contained herein, you may not be issued any shares ofCommon Stock under your Award unless the shares of Common Stock are either thenregistered under the Securities Act or, if such shares of Common Stock are notthen so registered, the Company has determined that such issuance would beexempt from the registration requirements of the Securities Act.  Your Award must also comply with other applicablelaws and regulations governing the Award, and you will not receive such sharesif the Company determines that such receipt would not be in material compliancewith such laws and regulations.

 

**5.****                                     ****LIMITATIONS ON TRANSFER. **Your Award is not transferable, except by will or bythe laws of descent and distribution.  Inaddition to any other limitation on transfer created by applicable securitieslaws, you agree not to assign, hypothecate, donate, encumber or otherwisedispose of any interest in any of the shares of Common Stock subject to the Awarduntil the shares are issued to you in accordance with Section 6 of thisAgreement.  After the shares have beenissued to you, you are free to assign, hypothecate, donate, encumber orotherwise dispose of any interest in such shares provided that any such actionsare in compliance with the provisions herein and applicable securitieslaws.  Notwithstanding the foregoing, bydelivering written notice to the Company, in a form satisfactory to theCompany, you may designate a third party 

 

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who, in the event of your death, shall thereafter beentitled to receive any distribution of Common Stock to which you were entitledat the time of your death pursuant to this Agreement.

 

**6.****                                     ****DATE OF ISSUANCE.**

 

**(a)****                                 **The Company willdeliver to you a number of shares of the Company’s Common Stock equal to thenumber of vested shares subject to your Award, including any additional sharesreceived pursuant to Section 3 above that relate to those vested shares,but less any number of shares withheld to satisfy tax withholding obligationspursuant to Section 12, on the applicable vesting date(s). However, if a scheduled delivery date falls on a date that is not abusiness day, such delivery date shall instead fall on the next followingbusiness day.

 

**(b)****                                 **Notwithstandingthe foregoing, in the event that (i) you are subject to the Company’spolicy permitting officers and directors to sell shares only during certain “window”periods, in effect from time to time or you are otherwise prohibited fromselling shares of the Company’s Common Stock in the public market and anyshares covered by your Award are scheduled to be delivered on a day (the “***Original Distribution Date***”)that does not occur during an open “window period” applicable to you, asdetermined by the Company in accordance with such policy, or does not occur ona date when you are otherwise permitted to sell shares of the Company’s commonstock on the open market, and (ii) you have not electedt to satisfy theCompany’s tax withholding obligations by withholding shares from yourdistribution, then such shares shall not be delivered on such OriginalDistribution Date and shall instead be delivered on the first business day ofthe next occurring open “window period” applicable to you pursuant to suchpolicy (regardless of whether you are still providing continuous services atsuch time) or the next business day when you are not prohibited from sellingshares of the Company’s Common Stock in the open market, but in no event laterthan the fifteenth (15th) day of the third calendar month of the calendar yearfollowing the calendar year in which the Original Distribution Dateoccurs.  The form of such delivery (*e.g.*, a stock certificate or electronicentry evidencing such shares) shall be determined by the Company.

 

**(c)****                                 **Notwithstanding the foregoing, thefollowing provisions shall apply if you elect to defer delivery of the sharessubject to your Award beyond the vesting date in accordance with this Section:

 

**(i)****                                   **If you elect to defer delivery of suchshares of Common Stock beyond the vesting date under the Company’s 2001Non-Qualified Deferred Compensation Plan (the “***DeferredCompensation Plan***”), then the Company will not deliver suchshares on the vesting date or dates provided in your Grant Notice and subjectto the foregoing provisions, but will instead deliver such shares to you on thedate or dates that you so elect, subject to the terms and conditions of theDeferred Compensation Plan (the “***Settlement Date***”).  If you elect to defer delivery of the sharessubject to your Award under the Deferred Compensation Plan, the shares subjectto your Award are subject to all the applicable terms and conditions of theDeferred Compensation Plan, 

 

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which shall control inthe event of any discrepancy between the terms of the Deferred CompensationPlan and the Grant Notice, this Agreement or the Plan.

 

**(ii)****                               **If the Company determines that you aresubject to its policy regarding insider trading of the Company’s stock or youare otherwise prohibited from selling shares of the Company’s stock in thepublic market and any shares of Common Stock subject to your Award arescheduled to be delivered on a Settlement Date that does not occur during anopen “window period” applicable to you, as determined by the Company inaccordance with such policy, or a day when you are prohibited from sellingshares of the Company’s stock in the public market and you have notelected to satisfy the Company’s tax withholding obligations by withholdingshares from your distribution, then such shares shall not be delivered on suchSettlement Date and shall instead be delivered as soon as practicable on thefirst business day within the next open “window period” applicable to youpursuant to such policy or the next day when you are not prohibited fromselling shares of the Company’s stock in the public market (regardless ofwhether you are still providing continuous services at such time); *provided,however,* that unless the delay until the next open window period orthe next day when you are not prohibited from selling shares of the Company’sstock in the public market would not result in the imposition of any additionaltaxes under the Code (including section 409A of the Code), the delivery of theshares shall not be delayed pursuant to this provision beyond sixty (60) days followingthe selected Settlement Date.  The form ofsuch delivery (*e.g.*, a stockcertificate or electronic entry evidencing such shares) shall be determined bythe Company.

 

**(iii)****                           **Notwithstanding anything to the contraryset forth in the Plan, in the event of a corporate transaction described in Section 11(c) ofthe Plan that is not a 409A Change of Control, then subject to the Company’sdiscretion related to termination of the Deferred Compensation Plan andoutstanding deferrals pursuant to Article 10 thereof, the surviving oracquiring corporation (or its parent company) (the “Acquiring Entity”) musteither assume, continue or substitute your Award, and shares subject to yourAward that vest, if any, shall be issued to you by the Acquiring Entity inaccordance with the terms of this Agreement and your deferral election.  For such purposes, a “409A Change in Control”is a change in the ownership or effective control of the Company, or in theownership of a substantial portion of the Company’s assets, as provided in CodeSection 409A(a)(2)(A)(v) and applicable guidance thereunder.

 

**(iv)****                              **In the event that you have a SeparationFrom Service that is not a termination of your Continuous Service, then anyunvested shares subject to your Award that vest following your Separation FromService will be issued to you in accordance with the provisions of Section 6(a) and6(b).  “Separation From Service” has themeaning set forth in Section 409A(a)(2)(A)(i) of the Code andapplicable guidance thereunder.

 

**7.****                                     ****EXECUTION OF DOCUMENTS.** You hereby acknowledge and agree that the manner selected by the Companyby which you indicate your consent to your Grant Notice is also deemed to beyour execution of your Grant Notice and of this Agreement.  You further agree that such manner ofindicating consent may be relied upon as your 

 

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signature forestablishing your execution of any documents to be executed in the future inconnection with your Award.

 

**8.****                                     ****IRREVOCABLE POWER OFATTORNEY. **You constitute and appoint the Secretaryof the Company as attorney-in-fact and agent to transfer said Common Stock onthe books of the Company with full power of substitution in the premises, andto execute with respect to such securities and other property all documents ofassignment and/or transfer and all stock certificates necessary or appropriateto make all securities negotiable and complete any transaction hereincontemplated.  This is a special power ofattorney coupled with an interest (specifically, the Company’s underlyingsecurity interest in retaining the shares of Common Stock in the event you donot perform the associated services for the Company), and is irrevocable andshall survive your death or legal incapacity. This power of attorney is limited to the matters specified in this Agreement                                                               ..

 

**9.****                                     ****DIVIDENDS.  **You shall receive no benefit or adjustment to yourAward with respect to any cash dividend, stock dividend or other distributionthat does not result from a capitalization adjustment as provided in the Plan;provided, however, that this sentence shall not apply with respect to anyshares of Common Stock that are delivered to you in connection with your Awardafter such shares have been delivered to you.

 

**10.****                              ****RESTRICTIVE LEGENDS. **The certificates representing the Common Stock shallhave endorsed thereon appropriate legends as determined by the Company.

 

**11.****                              ****AWARD NOT A SERVICE CONTRACT**.  Your Award is not an employment or servicecontract, and nothing in your Award shall be deemed to create in any waywhatsoever any obligation on your part to continue in the employ of the Companyor an Affiliate, or of the Company or an Affiliate to continue youremployment.  In addition, nothing in yourAward shall obligate the Company or an Affiliate, their respectivestockholders, Boards of Directors, Officers or Employees to continue anyrelationship that you might have as a Director or Consultant for the Company oran Affiliate.

 

**12.****                              ****WITHHOLDINGOBLIGATIONS.**

 

**(a)****                                 **On or before thetime the shares subject to your Award vest and/or you receive a distribution ofshares pursuant to your Award, or at any time thereafter as requested by theCompany, you may satisfy any federal, state, local or foreign tax withholdingobligation relating to your Award by any of the following means (in addition tothe Company’s right to withhold from any other compensation payable to you bythe Company) or by a combination of such means: (i) tendering a cashpayment; (ii) electing to have shares of Common Stock withheld from the sharesof Common Stock issued or otherwise issuable to you in connection with yourAward, or (iii) pursuant to a “same-day sale” procedure under a RegulationT Program conducted with the assistance of a brokerage firm.

 

**(b)****                                 **Unless the tax withholdingobligations of the Company or any Affiliate are timely satisfied as reasonablydetermined by the Company, the Company 

 

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shallhave no obligation to issue a certificate for such shares and any such sharesshall be automatically reacquired by the Company for no consideration.

 

**13.****                              ****UNSECURED OBLIGATION.** Your Award is unfunded, and as a holder of a vested Award, you shall beconsidered an unsecured creditor of the Company with respect to the Company’sobligation, if any, to issue shares pursuant to this Agreement.  You shall not have voting or any other rightsas a stockholder of the Company with respect to the shares to be issuedpursuant to this Agreement until such shares are issued to you pursuant to Section 6of this Agreement.   Upon such issuance,you will obtain full voting and other rights as a stockholder of theCompany.  Nothing contained in thisAgreement, and no action taken pursuant to its provisions, shall create or beconstrued to create a trust of any kind or a fiduciary relationship between youand the Company or any other person.

 

**14.****                              ****TAX CONSEQUENCES.**   You have reviewed with your own taxadvisors the federal, state, local and foreign tax consequences of thisinvestment and the transactions contemplated by this Agreement.  You are relying solely on such advisors andnot on any statements or representations of the Company or any of itsagents.  You understand that you (and notthe Company) shall be responsible for your own tax liability that may arise asa result of this investment or the transactions contemplated by this Agreement.

 

**15.****                              ****OTHER DOCUMENTS**.  Youhereby acknowledge receipt or the right to receive a document providing theinformation required by Rule 428(b)(1) promulgated under theSecurities Act, which includes the Plan prospectus.  In addition, you acknowledge receipt of theCompany’s policy permitting officers and directors to sell shares only duringcertain “window” periods and the Company’s insider trading policy, in effectfrom time to time.

 

**16.****                              ****NOTICES**.  Any notice or request required or permitted hereundershall be given in writing to each of the other parties hereto and shall bedeemed effectively given on the earlier of (a) the date of personaldelivery, including delivery by express courier, or (b) the date that isfive days after deposit in the United States Post Office (whether or notactually received by the addressee), by registered or certified mail withpostage and fees prepaid, addressed at the following addresses, or at suchother address(es) as a party may designate by ten days’ advance written noticeto each of the other parties hereto:

 
| **COMPANY:** |   | Amylin  Pharmaceuticals, Inc.9360 Towne Centre Drive  San Diego, CA 92121 |
|--------------|--------|--------------------------------------------------------------------------------|
|         |   | Attn: Secretary  of the Company                                                |
|         |   |                                                                           |
| **YOU:**     |   | Your address as  on file with the Company’s                               |
|         |   | Human Resources Department at the time notice is given                         |

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**17.****                              ****MISCELLANEOUS**.

 

**(a)****                                 **The rights and obligations of the Companyunder your Award shall be transferable to any one or more persons or entities,and all covenants and agreements hereunder shall inure to the benefit of, andbe enforceable by, the Company’s successors and assigns.  Your rights and obligations under your Awardmay only be assigned with the prior written consent of the Company.

 

**(b)****                                 **You agree upon request to execute anyfurther documents or instruments necessary or desirable in the soledetermination of the Company to carry out the purposes or intent of your Award.

 

**(c)****                                 **You acknowledge and agree that you havereviewed your Award in its entirety, have had an opportunity to obtain theadvice of counsel prior to executing and accepting your Award and fullyunderstand all provisions of your Award.

 

**(d)****                                 **This Agreement shall be subject to allapplicable laws, rules, and regulations, and to such approvals by anygovernmental agencies or national securities exchanges as may be required.

 

**(e)****                                 **All obligations of the Company under thePlan and this Agreement shall be binding on any successor to the Company,whether the existence of such successor is the result of a direct or indirectpurchase, merger, consolidation, or otherwise, of all or substantially all ofthe business and/or assets of the Company.

 

**18.****                              ****GOVERNING PLAN DOCUMENT**.  Your Award is subject to all the provisionsof the Plan, the provisions of which are hereby made a part of your Award, andis further subject to all interpretations, amendments, rules andregulations which may from time to time be promulgated and adopted pursuant tothe Plan.  In the event of any conflictbetween the provisions of your Award and those of the Plan, the provisions ofthe Plan shall control.

 

**19.****                              ****SEVERABILITY.** If all or any part of this Agreement or the Plan is declared by anycourt or governmental authority to be unlawful or invalid, such unlawfulness orinvalidity shall not invalidate any portion of this Agreement or the Plan notdeclared to be unlawful or invalid. Any Section of this Agreement (or partof such a Section) so declared to be unlawful or invalid shall, if possible, beconstrued in a manner which will give effect to the terms of such Section orpart of a Section to the fullest extent possible while remaining lawfuland valid.

 

**20.****                              ****EFFECT ON OTHER EMPLOYEE BENEFITPLANS.**  The value of the Award subject to thisAgreement shall not be included as compensation, earnings, salaries, or othersimilar terms used when calculating the Employee’s benefits under any employeebenefit plan sponsored by the Company or any Affiliate, except as such planotherwise expressly provides. The Company expressly reserves its rights toamend, modify, or terminate any of the Company’s or any Affiliate’s employeebenefit plans.

 

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**21.****                              ****CHOICE OF LAW.** The interpretation, performance and enforcement of this Agreement willbe governed by the law of the state of California without regard to such state’sconflicts of laws rules.

 

**22.****                              ****AMENDMENT.** This Agreement may not be modified, amended or terminated except by aninstrument in writing, signed by you and by a duly authorized representative ofthe Company. Notwithstanding the foregoing, this Agreement may be amendedsolely by the Board by a writing which specifically states that it is amendingthis Agreement, so long as a copy of such amendment is delivered to you, andprovided that no such amendment adversely affecting your rights hereunder maybe made without your written consent. Without limiting the foregoing, the Boardreserves the right to change, by written notice to you, the provisions of thisAgreement in any way it may deem necessary or advisable to carry out thepurpose of the grant as a result of any change in applicable laws orregulations or any future law, regulation, ruling, or judicial decision,provided that any such change shall be applicable only to rights relating tothat portion of the Award which is then subject to restrictions as providedherein.

 

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This Restricted Stock Unit Award Agreement shall be deemed to be signedby the Company and the Participant upon the signing by the Participant of theRestricted Stock Unit Award Grant Notice to which it is attached.

 

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