Exhibit 4.1


 


SECOND
AMENDMENT TO RIGHTS AGREEMENT


 


This SECOND AMENDMENT (the “Amendment”) to the Rights Agreement
(the “Agreement”) entered into as of June 17, 2002, as amended December 13,
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 March 12, 2008.


 


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 March 12, 2008, the Company entered into an
Agreement (the “Eastbourne Agreement”) with Eastbourne Capital Management, LLC
(“ECM”), Black Bear Offshore Master Fund, L.P. (“BBOMF”) and Richard J. Barry (“Barry,”
and together with ECM and BBOMF, “Eastbourne”), pursuant to which, among other
things, the Company agreed to amend the Agreement to allow Eastbourne to
purchase additional shares of the common stock of the Company without being
deemed an Acquiring Person pursuant to the Agreement (the “Stock Purchase”),
with such number of shares not to meet or exceed 20% of the shares of the
common stock of the Company outstanding on any given date;


 


WHEREAS, the Company desires to amend the Agreement in the
manner set forth in this Amendment to provide that Eastbourne will not be
deemed an Acquiring Person pursuant to the Agreement as a result of any Stock
Purchase by Eastbourne, 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 President
and Chief Executive Officer of the Company certifying that the proposed
amendment to the Agreement is in compliance with the terms of Section 27
of the Agreement.


 


 


1

















 


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).


 


2

















 


                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 December 13, 2002 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 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.


 


                Notwithstanding
the foregoing, during the term of agreement dated March 12, 2008 by and
among Eastbourne Capital Management, LLC (“ECM”), Black Bear Offshore Master
Fund, L.P. (“BBOMF”) and Richard J. Barry (together with ECM and BBOMF, “Eastbourne”)
and the Company, Eastbourne shall not be deemed to be an Acquiring Person for
purposes of this Agreement unless and until Eastbourne, together with all
Affiliates and Associates thereof, is the Beneficial Owner of 20% or more of
the Common Shares then outstanding; provided, however,
that Eastbourne shall also not become an Acquiring Person 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 Eastbourne to 20% or more of the Common Shares then outstanding; and provided further, that if Eastbourne shall become the Beneficial
Owner of 20% 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 20% of the Common Shares
then outstanding, then Eastbourne shall be deemed to be an Acquiring
Person.  The provisions of this paragraph
shall terminate and be of no further force and effect upon the termination of
the agreement dated March 12, 2008 by and among Eastbourne and the
Company.”


 


3.                                      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.


 


4.                                      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.


 


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The
foregoing SECOND AMENDMENT TO RIGHTS AGREEMENT is
hereby executed and consented to as of March 12, 2008.


 


 


	
  AMYLIN
  PHARMACEUTICALS, INC.

  	
   

  	
   

  	
  AMERICAN
  STOCK TRANSFER & 

       TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  	
   

  
					



 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   /s/ Mark G. Foletta

  	
   

  	
  By:

  	
  /s/
  Herbert J. Lemmer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Print
  Name:

  	
   Mark G. Foletta

  	
   

  	
  Print
  Name:

  	
  Herbert
  J. Lemmer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   Senior Vice President, Finance and 

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
  Chief
  Financial Officer

  	
   

  	
   

  	
   

  
									



 


 


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