Exhibit
10.1


 


AMYLIN
PHARMACEUTICALS, INC.
 2009 EQUITY INCENTIVE PLAN


 


RESTRICTED STOCK UNIT AWARD
AGREEMENT


 


Pursuant to the Restricted Stock Unit Award Grant
Notice (the “Grant
Notice”) and this Restricted
Stock Unit Award Agreement (the “Agreement”)
(collectively, the “Award”) and in consideration
of your services rendered or to be rendered, as applicable, Amylin
Pharmaceuticals, Inc. (the “Company”)
has granted you a Restricted Stock Unit Award under its 2009 Equity Incentive
Plan (the “Plan”).  Defined
terms not explicitly defined in this Agreement but defined in the Grant Notice
or the Plan shall have the same definitions as in the Grant Notice or the Plan,
as applicable.


 


The
details of your Award, in addition to those set forth in the Grant Notice and
the Plan, are as follows:


 


1.                                      GRANT OF
THE AWARD.   
This Award
represents the right to be issued on a future date the number of shares of the Company’s Common Stock as indicated in the
Grant Notice.  As of the Date of
Grant, the Company will credit to a bookkeeping account maintained by the
Company for your benefit (the “Account”)
the number of shares of Common Stock subject to the Award.  This
Award was granted in consideration of your services to the Company.  Except as otherwise provided herein, you will
not be required to make any payment to the Company (other than past and future
services to the Company) with respect to your receipt of the Award, the vesting
of the shares or the delivery of the underlying Common Stock.


 


2.                                      VESTING.


 


(a)                                  Subject to the
limitations contained herein, your Award will vest, if at all, in accordance
with the vesting criteria provided in the Grant Notice, provided that no shares
will vest following a termination of your Continuous Service.  Upon such termination of your Continuous Service, the
Award shall terminate and the shares credited to the Account that were not
vested on the date of such termination will be forfeited at no cost to the
Company and you will have no further right, title or interest in or to such
underlying shares of Common Stock or the Award.


 


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


 

















 


included in the Company’s
2011 Annual Report of Form 10-K, presented in accordance with Generally
Accepted Accounting Principles (“GAAP”), adjusted for noncash items consisting
of equity compensation, depreciation and amortization, amortization of deferred
revenue and also adjusted for restructuring and other charges (reported in
accordance with ASC 420-10-S99) and any charges that qualify for treatment as “Unusual
Items” (in accordance with ASC 225-20-45-16) and are reported as a separate
component of income from continuing items. 
The ending result of these adjustments to GAAP operating loss must
reflect an income position in order to meet the definition of non-GAAP
operating income.


 


3.                                      NUMBER OF
SHARES.


 


(a)                                  The number of shares of Common
Stock subject to your Award as referenced in your Grant Notice may be adjusted from
time to time for capitalization adjustments, as set forth in Section 11 of
the Plan.


 


(b)                                  Any shares, cash or other property that
becomes subject to the Award pursuant to this Section 3, if any, shall be
subject, in a manner determined by the Board, to the same forfeiture
restrictions, restrictions on transferability, and time and manner of delivery
as 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 be
created pursuant to this Section 3. 
The Board shall, in its discretion, determine an equivalent benefit for
any fractional shares or fractional shares that might be created by the
adjustments referred to in this Section 3.


 


4.                                      SECURITIES
LAW COMPLIANCE.  Notwithstanding
anything to the contrary contained herein, you may not be issued any shares of
Common Stock under your Award unless the shares of Common Stock are either then
registered under the Securities Act or, if such shares of Common Stock are not
then so registered, the Company has determined that such issuance would be
exempt from the registration requirements of the Securities Act.  Your Award must also comply with other applicable
laws and regulations governing the Award, and you will not receive such shares
if the Company determines that such receipt would not be in material compliance
with such laws and regulations.


 


5.                                      LIMITATIONS ON TRANSFER.  Your Award is not transferable, except by will or by
the laws of descent and distribution.  In
addition to any other limitation on transfer created by applicable securities
laws, you agree not to assign, hypothecate, donate, encumber or otherwise
dispose of any interest in any of the shares of Common Stock subject to the Award
until the shares are issued to you in accordance with Section 6 of this
Agreement.  After the shares have been
issued to you, you are free to assign, hypothecate, donate, encumber or
otherwise dispose of any interest in such shares provided that any such actions
are in compliance with the provisions herein and applicable securities
laws.  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 receive any distribution of Common Stock to which you were entitled
at the time of your death pursuant to this Agreement.


 


6.                                      DATE OF ISSUANCE.


 


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


 


(b)                                  Notwithstanding
the foregoing, in the event that (i) you are subject to the Company’s
policy permitting officers and directors to sell shares only during certain “window”
periods, in effect from time to time or you are otherwise prohibited from
selling shares of the Company’s Common Stock in the public market and any
shares 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, as
determined by the Company in accordance with such policy, or does not occur on
a date when you are otherwise permitted to sell shares of the Company’s common
stock on the open market, and (ii) you have not electedt to satisfy the
Company’s tax withholding obligations by withholding shares from your
distribution, then such shares shall not be delivered on such Original
Distribution Date and shall instead be delivered on the first business day of
the next occurring open “window period” applicable to you pursuant to such
policy (regardless of whether you are still providing continuous services at
such time) or the next business day when you are not prohibited from selling
shares of the Company’s Common Stock in the open market, but in no event later
than the fifteenth (15th) day of the third calendar month of the calendar year
following the calendar year in which the Original Distribution Date
occurs.  The form of such delivery (e.g., a stock certificate or electronic
entry evidencing such shares) shall be determined by the Company.


 


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


 


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


 

















 


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


 


(ii)                                If the Company determines that you are
subject to its policy regarding insider trading of the Company’s stock or you
are otherwise prohibited from selling shares of the Company’s stock in the
public market and any shares of Common Stock subject to your Award are
scheduled to be delivered on a Settlement Date that does not occur during an
open “window period” applicable to you, as determined by the Company in
accordance with such policy, or a day when you are prohibited from selling
shares of the Company’s stock in the public market and you have not
elected to satisfy the Company’s tax withholding obligations by withholding
shares from your distribution, then such shares shall not be delivered on such
Settlement Date and shall instead be delivered as soon as practicable on the
first business day within the next open “window period” applicable to you
pursuant to such policy or the next day when you are not prohibited from
selling shares of the Company’s stock in the public market (regardless of
whether you are still providing continuous services at such time); provided,
however, that unless the delay until the next open window period or
the next day when you are not prohibited from selling shares of the Company’s
stock in the public market would not result in the imposition of any additional
taxes under the Code (including section 409A of the Code), the delivery of the
shares shall not be delayed pursuant to this provision beyond sixty (60) days following
the selected Settlement Date.  The form of
such delivery (e.g., a stock
certificate or electronic entry evidencing such shares) shall be determined by
the Company.


 


(iii)                            Notwithstanding anything to the contrary
set forth in the Plan, in the event of a corporate transaction described in Section 11(c) of
the Plan that is not a 409A Change of Control, then subject to the Company’s
discretion related to termination of the Deferred Compensation Plan and
outstanding deferrals pursuant to Article 10 thereof, the surviving or
acquiring corporation (or its parent company) (the “Acquiring Entity”) must
either assume, continue or substitute your Award, and shares subject to your
Award that vest, if any, shall be issued to you by the Acquiring Entity in
accordance 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 the
ownership of a substantial portion of the Company’s assets, as provided in Code
Section 409A(a)(2)(A)(v) and applicable guidance thereunder.


 


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


 


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


 

















 


signature for
establishing your execution of any documents to be executed in the future in
connection with your Award.


 


8.                                      IRREVOCABLE POWER OF
ATTORNEY.  You constitute and appoint the Secretary
of the Company as attorney-in-fact and agent to transfer said Common Stock on
the books of the Company with full power of substitution in the premises, and
to execute with respect to such securities and other property all documents of
assignment and/or transfer and all stock certificates necessary or appropriate
to make all securities negotiable and complete any transaction herein
contemplated.  This is a special power of
attorney coupled with an interest (specifically, the Company’s underlying
security interest in retaining the shares of Common Stock in the event you do
not perform the associated services for the Company), and is irrevocable and
shall 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 your
Award with respect to any cash dividend, stock dividend or other distribution
that does not result from a capitalization adjustment as provided in the Plan;
provided, however, that this sentence shall not apply with respect to any
shares of Common Stock that are delivered to you in connection with your Award
after such shares have been delivered to you.


 


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


 


11.                               AWARD NOT A SERVICE CONTRACT.  Your Award is not an employment or service
contract, and nothing in your Award 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
Award 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.


 


12.                               WITHHOLDING
OBLIGATIONS.


 


(a)                                  On or before the
time the shares subject to your Award vest and/or you receive a distribution of
shares pursuant to your Award, or at any time thereafter as requested by the
Company, you may satisfy any federal, state, local or foreign tax withholding
obligation relating to your Award by any of the following means (in addition to
the Company’s right to withhold from any other compensation payable to you by
the Company) or by a combination of such means: (i) tendering a cash
payment; (ii) electing to have shares of Common Stock withheld from the shares
of Common Stock issued or otherwise issuable to you in connection with your
Award, or (iii) pursuant to a “same-day sale” procedure under a Regulation
T Program conducted with the assistance of a brokerage firm.


 


(b)                                  Unless the tax withholding
obligations of the Company or any Affiliate are timely satisfied as reasonably
determined by the Company, the Company 


 

















 


shall
have no obligation to issue a certificate for such shares and any such shares
shall 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 be
considered an unsecured creditor of the Company with respect to the Company’s
obligation, if any, to issue shares pursuant to this Agreement.  You shall not have voting or any other rights
as a stockholder of the Company with respect to the shares to be issued
pursuant to this Agreement until such shares are issued to you pursuant to Section 6
of this Agreement.   Upon such issuance,
you will obtain full voting and other rights as a stockholder of the
Company.  Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind or a fiduciary relationship between you
and the Company or any other person.


 


14.                               TAX CONSEQUENCES.   You have reviewed with your own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement.  You are relying solely on such advisors and
not on any statements or representations of the Company or any of its
agents.  You understand that you (and not
the Company) shall be responsible for your own tax liability that may arise as
a result of this investment or the transactions contemplated by this Agreement.


 


15.                               OTHER DOCUMENTS.  You
hereby acknowledge receipt or the right to receive a document providing the
information required by Rule 428(b)(1) promulgated under the
Securities Act, which includes the Plan prospectus.  In addition, you acknowledge receipt of the
Company’s policy permitting officers and directors to sell shares only during
certain “window” periods and the Company’s insider trading policy, in effect
from time to time.


 


16.                               NOTICES.  Any notice or request required or permitted hereunder
shall be given in writing to each of the other parties hereto and shall be
deemed effectively given on the earlier of (a) the date of personal
delivery, including delivery by express courier, or (b) the date that is
five days after deposit in the United States Post Office (whether or not
actually received by the addressee), by registered or certified mail with
postage and fees prepaid, addressed at the following addresses, or at such
other address(es) as a party may designate by ten days’ advance written notice
to 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

  



 

















 


17.                               MISCELLANEOUS.


 


(a)                                  The rights and obligations of the Company
under 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, and
be enforceable by, the Company’s successors and assigns.  Your rights and obligations under your Award
may only be assigned with the prior written consent of the Company.


 


(b)                                  You agree upon request to execute any
further documents or instruments necessary or desirable in the sole
determination of the Company to carry out the purposes or intent of your Award.


 


(c)                                  You acknowledge and agree that you have
reviewed your Award in its entirety, have had an opportunity to obtain the
advice of counsel prior to executing and accepting your Award and fully
understand all provisions of your Award.


 


(d)                                  This Agreement shall be subject to all
applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.


 


(e)                                  All obligations of the Company under the
Plan 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 indirect
purchase, merger, consolidation, or otherwise, of all or substantially all of
the business and/or assets of the Company.


 


18.                               GOVERNING PLAN DOCUMENT.  Your Award is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your Award, 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 Award and those of the Plan, the provisions of
the Plan shall control.


 


19.                               SEVERABILITY. 
If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid. Any Section of this Agreement (or part
of such a Section) so declared to be unlawful or invalid shall, if possible, be
construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful
and valid.


 


20.                               EFFECT ON OTHER EMPLOYEE BENEFIT
PLANS.  The value of the Award subject to this
Agreement shall not be included as compensation, earnings, salaries, or other
similar terms used when calculating the Employee’s benefits under any employee
benefit plan sponsored by the Company or any Affiliate, except as such plan
otherwise expressly provides. The Company expressly reserves its rights to
amend, modify, or terminate any of the Company’s or any Affiliate’s employee
benefit plans.


 

















 


21.                               CHOICE OF LAW. 
The interpretation, performance and enforcement of this Agreement will
be governed by the law of the state of California without regard to such state’s
conflicts of laws rules.


 


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


 


* * * * *


 


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