Exhibit 10.2


 


AMYLIN
PHARMACEUTICALS, INC.


2009 EQUITY
INCENTIVE PLAN


 


STOCK OPTION
AGREEMENT


(INCENTIVE
STOCK OPTION OR NONSTATUTORY STOCK OPTION)


 


Pursuant to your Stock Option
Grant Notice (“Grant Notice”) and this Stock Option Agreement, Amylin Pharmaceuticals, Inc.
(the “Company”) has granted you an option under its 2009 Equity Incentive Plan
(the “Plan”) to purchase the number of shares of the Company’s Common Stock
indicated in your Grant Notice at the exercise price indicated in your Grant
Notice.  Defined terms not explicitly
defined in this Stock Option Agreement but defined in the Plan shall have the
same definitions as in the Plan.


 


The details of your option are
as follows:


 


1.                                      VESTING.  Subject to the limitations contained herein,
your option will vest as provided in your Grant Notice, provided that vesting
will cease upon the termination of your Continuous Service.


 


(a)                                  Special Acceleration Provisions. 
Notwithstanding any other provisions of the Plan to the contrary, if (i) a
Change in Control occurs and (ii) within ninety (90) days prior to the
date of such Change in Control or thirteen (13) months after the date of such
Change in Control your Continuous Service terminates due to an involuntary
termination (not including death or Disability) without Cause or due to a
Constructive Termination, then the vesting and exercisability of the shares
subject to your option shall be accelerated in full or any reacquisition or
repurchase rights held by the Company with respect to Common Stock acquired pursuant
to the early exercise of your option shall lapse in full, as appropriate;
provided, however, that if such acceleration of the vesting and exercisability
of your Option (or lapse of reacquisition or repurchase rights held by the
Company with respect to Common Stock acquired pursuant to the early exercise of
this Option) would cause a contemplated Change in Control transaction that
would otherwise be eligible to be accounted for as a “pooling-of-interests”
transaction to become ineligible for such accounting treatment under generally
accepted accounting principles as determined by the Company’s independent
certified public accountants (“Accountants”) prior to the Change in Control,
such acceleration shall not occur.


 


For purposes of this subsection 1(a) and Section 7(f) only,
“Cause” means that, in the reasonable determination of the Company, you have (i) been
convicted of or pleaded guilty or nolo contendere
to a felony or any crime involving moral turpitude or dishonesty; (ii) participated
in a fraud or act of dishonesty against the Company; (iii) willfully and
materially breached a Company policy; (iv) intentionally damaged the
Company’s property; (v) willfully and materially breached your Proprietary
Information and Inventions Agreement with the Company; (vi) engaged in
conduct that, in the reasonable determination of the Company, demonstrates
gross unfitness to serve; or (vii) repeatedly failed to satisfactorily
perform job duties to which you previously agreed in writing.  The conduct described under clauses (iii), (vi) and
(vii) above will only constitute Cause if such conduct is not cured within
90 days after your


 


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receipt of written notice
from the Company or the Board specifying the particulars of the conduct that
may constitute Cause.


 


For purposes of this subsection 1(a) only, “Change
in Control” means the occurrence of any of the following:  (i) any “person,” as such term is used
in Sections 13(d) and 14(d) of the Securities and Exchange Act of 1934,
as amended from time to time, and any successor statute (the “Exchange Act”)
(other than the Company, a subsidiary, an affiliate, or a Company employee
benefit plan, including any trustee of such plan acting as trustee) is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities other than by virtue of a merger, consolidation or
similar transaction; (ii) there is consummated a sale or other disposition
of all or substantially of assets of the Company (other than a sale to an
entity where at least 50% of the combined voting power of the voting securities
of such entity are owned by the stockholders of the Company in substantially
the same proportions as their ownership of the Company immediately prior to
such sale); or (iii) there is consummated a merger, consolidation or
similar transaction involving (directly or indirectly) the Company and,
immediately after the consummation of such transaction, the stockholders of the
Company immediately prior to the consummation of such transaction do not own,
directly or indirectly, outstanding voting securities representing more than
50% of the combined outstanding voting power of the surviving entity in such
transaction or more than 50% of the combined outstanding voting power of the
parent of the surviving entity in such transaction.


 


For purposes of this subsection 1(a) only,
Constructive Termination means that you voluntarily terminate your employment
with the Company after any of the following are undertaken without Cause and
without your express written consent:  (i) a
reduction by the Company in your annual base salary as in effect during the
last regularly scheduled payroll period immediately prior to the effective date
of the Change in Control (or as increased thereafter), unless such reduction is
made pursuant to an across-the-board reduction of the base salaries of all
similarly situated Employees of no more than ten percent (10%); (ii) your
relocation, or the relocation of the Company’s principal executive offices if
your principal office is at such offices, to a location more than fifty (50)
miles from the location at which you were performing your duties immediately
prior to the effective date of the Change in Control, except for required
travel on the Company’s business to an extent substantially consistent with
your business travel obligations immediately prior to the effective date of the
Change in Control; (iii) your assignment of any duties or responsibilities
that results in a material diminution in your authority, duties or
responsibilities as in effect immediately prior to the Change in Control; (iv) a
material breach by the Company of any provision of the Plan or any enforceable
written agreement between you and the Company; or (v) any failure by the
Company to obtain the assumption of the Plan by any successor or assign of the
Company.


 


(b)                                  Parachute Payments. 
In the event that the acceleration of the vesting and exercisability of
your Option and/or the lapse of reacquisition or repurchase rights with respect
to Common Stock acquired pursuant to the early exercise of an Option provided
for in subsection 1(a) and benefits otherwise payable to you (i) constitute
“parachute payments” within the meaning of Section 280G of the Code, or
any comparable successor provisions, and (ii) but for


 


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this subsection would be
subject to the excise tax imposed by Section 4999 of the Code, or any
comparable successor provisions (the “Excise Tax”), then your benefits
hereunder shall be either


 


(i)                                    provided to you in full, or


 


(ii)                                provided to you as to such lesser extent
which would result in no portion of such benefits being subject to the Excise
Tax,


 


whichever of the
foregoing amounts, when taking into account applicable federal, state, local
and foreign income and employment taxes, the Excise Tax, and any other
applicable taxes, results in the receipt by you, on an after-tax basis, of the
greatest amount of benefits, notwithstanding that all or some portion of such
benefits may be taxable under the Excise Tax. 
Unless the Company and you otherwise agree in writing, any determination
required under this subsection shall be made in writing in good faith by the
accounting firm engaged by the Company for general audit purposes as of the day
prior to the effective date of the Change in Control.  If the accounting firm so engaged by the
Company is serving as accountant or auditor for the individual, entity or group
effecting the Change in Control, the Company shall appoint a different
nationally recognized accounting firm to make the determinations required
hereunder (the accounting firm so engaged pursuant to the two immediately
preceding sentences, the “Accountants”). 
In the event of a reduction of benefits hereunder, you shall be given
the choice of which benefits to reduce. 
For purposes of making the calculations required by this subsection, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of the Code, and other applicable legal authority.  The Company and you shall furnish to the
Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this subsection.  The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this subsection.


 


If, notwithstanding any
reduction described in this subsection, the IRS determines that you are liable
for the Excise Tax as a result of the receipt of the payment of benefits as
described above, then you shall be obligated to pay back to the Company, within
thirty (30) days after a final IRS determination or in the event that you
challenge the final IRS determination, a final judicial determination, a
portion of the payment equal to the “Repayment Amount.”  The Repayment Amount with respect to the
payment of benefits shall be the smallest such amount, if any, as shall be
required to be paid to the Company so that your net after-tax proceeds with
respect to any payment of benefits (after taking into account the payment of
the Excise Tax and all other applicable taxes imposed on such payment) shall be
maximized.  The Repayment Amount with
respect to the payment of benefits shall be zero if a Repayment Amount of more
than zero would not result in your net after-tax proceeds with respect to the
payment of such benefits being maximized. 
If the Excise Tax is not eliminated pursuant to this paragraph, you
shall pay the Excise Tax.


 


Notwithstanding any other
provision of this subsection 1(b), if (i) there is a reduction in the payment
of benefits as described in this subsection, (ii) the IRS later determines
that you are liable for the Excise Tax, the payment of which would result in
the maximization of your net after-tax proceeds (calculated as if your benefits
had not previously been reduced), and (iii) you pay the Excise Tax, then
the Company shall pay to you those benefits which were


 


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reduced pursuant to this
subsection contemporaneously or as soon as administratively possible after you
pay the Excise Tax so that your net after-tax proceeds with respect to the
payment of benefits is maximized.


 


If you either (i) bring
any action to enforce rights pursuant to this subsection 1(b), or (ii) defend
any legal challenge to your rights hereunder, you shall be entitled to recover
attorneys’ fees and costs incurred in connection with such action, regardless
of the outcome of such action; provided, however, that in the event such action
is commenced by you, the court finds the claim was brought in good faith.


 


2.                                      NUMBER OF
SHARES AND EXERCISE PRICE. 
The number of shares of Common Stock subject to your option and your
exercise price per share referenced in your Grant Notice may be adjusted from
time to time for capitalization adjustments, as provided in the Plan.


 


3.                                      EXERCISE
PRIOR TO VESTING (“EARLY EXERCISE”). 
Early exercise of any portion of your option prior to vesting is not
permitted.


 


4.                                      METHOD OF
PAYMENT.  Payment of the
exercise price is due in full upon exercise of all or any part of your
option.  You may elect to make payment of
the exercise price in cash or by check or in any other manner permitted by your Grant Notice,
which may include one or more of the following:


 


(a)                                  In the Company’s sole discretion
at the time your option is exercised and provided that at the time of exercise
the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board that, prior to
the issuance of Common Stock, results in either the receipt of cash (or check)
by the Company or the receipt of irrevocable instructions to pay the aggregate
exercise price to the Company from the sales proceeds.


 


(b)                                  Provided that at the time of
exercise the Common Stock is publicly traded and quoted regularly in The Wall Street Journal, by delivery of already-owned shares
of Common Stock either that you have held for the period required to avoid a
charge to the Company’s reported earnings (generally six months) or that you
did not acquire, directly or indirectly from the Company, that are owned free
and clear of any liens, claims, encumbrances or security interests, and that
are valued at Fair Market Value on the date of exercise.  “Delivery” for these purposes, in the sole
discretion of the Company at the time you exercise your option, shall include
delivery to the Company of your attestation of ownership of such shares of
Common Stock in a form approved by the Company. 
Notwithstanding the foregoing, you may not exercise your option by
tender to the Company of Common Stock to the extent such tender would violate
the provisions of any law, regulation or agreement restricting the redemption
of the Company’s stock.


 


(c)                                  Pursuant to the following
deferred payment alternative:


 


(i)                                    Not less than one hundred
percent (100%) of the aggregate exercise price, plus accrued interest, shall be
due (i) on the date designated by the Company in its  sole and absolute discretion but not to exceed
four (4) years from date of exercise, or (ii) at the Company’s
election, upon termination of your Continuous Service.


 


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(ii)                                Interest shall be compounded at
least annually and shall be charged at the market rate of interest necessary to
avoid a charge to earnings for financial accounting purposes.


 


(iii)                            At any time that the Company is
incorporated in Delaware, payment of the Common Stock’s “par value,” as defined
in the Delaware General Corporation Law, shall be made in cash and not by deferred
payment.


 


(iv)                               In order to elect the deferred
payment alternative, you must, as a part of your written notice of exercise,
give notice of the election of this payment alternative and, in order to secure
the payment of the deferred exercise price to the Company hereunder, if the
Company so requests, you must tender to the Company a promissory note and a
security agreement covering the purchased shares of Common Stock, both in form
and substance satisfactory to the Company, or such other or additional documentation
as the Company may request.


 


5.                                      WHOLE
SHARES.  You may exercise your option only
for whole shares of Common Stock.


 


6.                                      SECURITIES
LAW COMPLIANCE.  Notwithstanding
anything to the contrary contained herein, you may not exercise your option
unless the shares of Common Stock issuable upon such exercise are then
registered under the Securities Act or, if such shares of Common Stock are not
then so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act.  The exercise of your option must also comply
with other applicable laws and regulations governing your option, and you may
not exercise your option if the Company determines that such exercise would not
be in material compliance with such laws and regulations.


 


7.                                      TERM.  You may not exercise your option before the
commencement of its term or after its term expires.  The term of your option commences on the Date
of Grant and expires upon the earliest of
the following:


 


(a)                                  subject to Section 7(f),
three (3) months after the termination of your Continuous Service for any
reason other than your Disability or death, provided that if during any part of
such three (3) month period your option is not exercisable solely because
of the condition set forth in the preceding paragraph relating to “Securities
Law Compliance,” your option shall not expire until the earlier of the
Expiration Date or until it shall have been exercisable for an aggregate period
of three (3) months after the termination of your Continuous Service;


 


(b)                                  subject to Section 7(f),
twelve (12) months after the termination of your Continuous Service due to your
Disability;


 


(c)                                  subject to Section 7(f),
twelve (12) months after your death if you die either during your Continuous
Service or within three (3) months after your Continuous Service
terminates;


 


(d)                                  the Expiration Date indicated in
your Grant Notice;


 


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(e)                                  the day before the tenth (10th)
anniversary of the Date of Grant; or


 


(f)                                    in the event that your Continuous Service
terminates without Cause or because of your Disability or death, in any such
case at a time when you are 55 years old or older and have Continuous Service
of 5 years or more, then, to the extent you were entitled to exercise your
option at the date of such termination, your option will expire upon the
earliest of the fifth anniversary of such date, the Expiration Date indicated
in your Grant Notice, or the day before the tenth (10th) anniversary of the Date of Grant.


 


If your option is an incentive
stock option, note that, to obtain the federal income tax advantages associated
with an “incentive stock option,” the Code requires that at all times beginning
on the date of grant of your option and ending on the day three (3) months
before the date of your option’s exercise, you must be an employee of the
Company or an Affiliate, except in the event of your death or Disability.  The Company has provided for extended
exercisability of your option under certain circumstances for your benefit but
cannot guarantee that your option will necessarily be treated as an “incentive
stock option” if you continue to provide services to the Company or an
Affiliate as a Consultant or Director after your employment terminates or if
you otherwise exercise your option more than three (3) months after the
date your employment terminates.


 


8.                                      EXERCISE.


 


(a)                                  You may exercise the vested
portion of your option (and the unvested portion of your option if your Grant
Notice so permits) during its term by delivering a Notice of Exercise (in a
form designated by the Company) together with the exercise price to the
Secretary of the Company, or to such other person as the Company may designate,
during regular business hours, together with such additional documents as the
Company may then require.


 


(b)                                  By exercising your option you
agree that, as a condition to any exercise of your option, the Company may
require you to enter into an arrangement providing for the payment by you to
the Company of any tax withholding obligation of the Company arising by reason
of (1) the exercise of your option, (2) the lapse of any substantial
risk of forfeiture to which the shares of Common Stock are subject at the time
of exercise, or (3) the disposition of shares of Common Stock acquired
upon such exercise.


 


(c)                                  If your option is an incentive
stock option, by exercising your option you agree that you will notify the
Company in writing within fifteen (15) days after the date of any disposition of
any of the shares of the Common Stock issued upon exercise of your option that
occurs within two (2) years after the date of your option grant or within
one (1) year after such shares of Common Stock are transferred upon
exercise of your option.


 


9.                                      TRANSFERABILITY.  Your option is not transferable, except by
will or by the laws of descent and distribution, and is exercisable during your
life only by you.  Notwithstanding the
foregoing, by delivering written notice to the Company, in a form satisfactory
to the Company, you may designate a third party who, in the event of your
death, shall thereafter be entitled to exercise your option.


 


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10.                               OPTION NOT A SERVICE CONTRACT.  Your option is not an employment or service
contract, and nothing in your option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
or an Affiliate, or of the Company or an Affiliate to continue your employment.  In addition, nothing in your option shall
obligate the Company or an Affiliate, their respective stockholders, Boards of
Directors, Officers or Employees to continue any relationship that you might
have as a Director or Consultant for the Company or an Affiliate.


 


11.                               WITHHOLDING OBLIGATIONS.


 


(a)                                  At the time you exercise your
option, in whole or in part, or at any time thereafter as requested by the
Company, you hereby authorize withholding from payroll and any other amounts
payable to you, and otherwise agree to make adequate provision for (including
by means of a “cashless exercise” pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board to the extent
permitted by the Company), any sums required to satisfy the federal, state, local
and foreign tax withholding obligations of the Company or an Affiliate, if any,
which arise in connection with your option.


 


(b)                                  Upon your request and subject to
approval by the Company, in its sole discretion, and compliance with any
applicable conditions or restrictions of law, the Company may withhold from
fully vested shares of Common Stock otherwise issuable to you upon the exercise
of your option a number of whole shares of Common Stock having a Fair Market
Value, determined by the Company as of the date of exercise, not in excess of
the minimum amount of tax required to be withheld by law.  If the date of determination of any tax
withholding obligation is deferred to a date later than the date of exercise of
your option, share withholding pursuant to the preceding sentence shall not be
permitted unless you make a proper and timely election under Section 83(b) of
the Code, covering the aggregate number of shares of Common Stock acquired upon
such exercise with respect to which such determination is otherwise deferred,
to accelerate the determination of such tax withholding obligation to the date
of exercise of your option. 
Notwithstanding the filing of such election, shares of Common Stock
shall be withheld solely from fully vested shares of Common Stock determined as
of the date of exercise of your option that are otherwise issuable to you upon
such exercise.  Any adverse consequences
to you arising in connection with such share withholding procedure shall be
your sole responsibility.


 


(c)                                  You may not exercise your option
unless the tax withholding obligations of the Company and/or any Affiliate are
satisfied.  Accordingly, you may not be
able to exercise your option when desired even though your option is vested,
and the Company shall have no obligation to issue a certificate for such shares
of Common Stock or release such shares of Common Stock from any escrow provided
for herein.


 


12.                               NOTICES.  Any notices provided for in your option or
the Plan shall be given in writing and shall be deemed effectively given upon
receipt or, in the case of notices delivered by mail by the Company to you,
five (5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company.


 


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13.                               GOVERNING PLAN DOCUMENT.  Your option is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your option, and
is further subject to all interpretations, amendments, rules and regulations
which may from time to time be promulgated and adopted pursuant to the
Plan.  In the event of any conflict
between the provisions of your option and those of the Plan, the provisions of
the Plan shall control.


 


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