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EXHIBIT 4.3
AMYLIN PHARMACEUTICALS, INC.
COMMON STOCK PURCHASE AGREEMENT
OCTOBER 6, 1999
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TABLE OF CONTENTS
PAGE
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1. AUTHORIZATION OF SALE OF THE SHARES.......................................1
2. AGREEMENT TO SELL AND PURCHASE THE SHARES.................................1
2.1 Sale of the Shares...............................................1
2.2 Separate Agreements..............................................1
2.3 Acceptance of Proposed Purchase of Shares........................1
3. DELIVERY OF THE SHARES AT THE CLOSING.....................................1
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY..................2
4.1 Organization and Qualification...................................2
4.2 Due Execution, Delivery and Performance of the Agreements........2
4.3 Issuance, Sale and Delivery of the Shares........................2
4.4 Public Information; Financial Statements.........................3
4.5 No Material Change...............................................4
4.6 Eligibility for Form S-3.........................................4
4.7 Litigation.......................................................4
4.8 Governmental Consents............................................4
4.9 Use of Proceeds..................................................4
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER................4
5.1 Investment Representations.......................................4
5.2 Requisite Power and Authority....................................5
5.3 Rule 144.........................................................5
5.4 Covenants........................................................5
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS....................6
7. REGISTRATION OF THE COMMON STOCK; COMPLIANCE WITH THE SECURITIES ACT......6
7.1 Registration Procedures and Expenses.............................6
7.2 Notification of Changes..........................................7
7.3 Indemnification..................................................7
7.4 Termination of Conditions and Obligations........................9
7.5 Legends.........................................................10
8. BROKER'S FEE.............................................................10
9. NOTICES..................................................................10
10. CHANGES..................................................................11
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11. HEADINGS.................................................................11
12. SEVERABILITY.............................................................11
13. GOVERNING LAW............................................................11
14. COUNTERPARTS.............................................................11
15. SUCCESSORS AND ASSIGNS...................................................11
16. FURTHER ACTIONS..........................................................11
17. ENTIRE AGREEMENT.........................................................11
18. PAYMENT OF FEES AND EXPENSES.............................................12
19. CONFIDENTIAL DISCLOSURE AGREEMENT........................................12
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made as of October
6, 1999 between AMYLIN PHARMACEUTICALS, INC., a Delaware corporation with its
principal place of business at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000 (the "Company"), and the purchaser whose name and address are
set forth on the signature page hereof (the "Purchaser").
IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Purchaser agree as follows:
1. AUTHORIZATION OF SALE OF THE SHARES. Subject to the terms and
conditions of this Agreement, the Company has authorized the sale of up to four
million (4,000,000) shares of Common Stock of the Company (the "Shares") at a
price of five dollars ($5.00) per Share.
2. AGREEMENT TO SELL AND PURCHASE THE SHARES.
2.1 SALE OF THE SHARES. At the Closing (as defined in Section 3), the
Company will sell to the Purchaser, and the Purchaser will buy from the Company,
upon the terms and conditions hereinafter set forth, the number of Shares set
forth next to Purchaser's name on the signature page hereof. The Shares shall
have the rights, preferences, privileges and restrictions set forth in the
Company's Amended and Restated Certificate of Incorporation, as amended to date
(the "Certificate").
2.2 SEPARATE AGREEMENTS. The Company proposes to enter the same form of
purchase agreement with certain other investors (the "Other Purchasers") and
expects to complete sales of Shares to them. The Purchaser and the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Purchasers," and this Agreement and the agreements executed by the Other
Purchasers are hereinafter sometimes collectively referred to as the
"Agreements."
2.3 ACCEPTANCE OF PROPOSED PURCHASE OF SHARES. The Company shall have
no obligation hereunder with respect to the Purchaser until the Company shall
execute and deliver to the Purchaser an executed copy of this Agreement. If this
Agreement is not executed and delivered by the Company, this Agreement shall be
of no further force or effect.
3. DELIVERY OF THE SHARES AT THE CLOSING. Subject to Section 2.3 herein,
the completion of the purchase and sale of the Shares to be issued pursuant to
this Agreement (the "Closing") shall occur (i) upon receipt by the Company of
(A) a copy of this Agreement which has been executed on Purchaser's behalf, (B)
a completed Stock Certificate Questionnaire, the form of which is attached
hereto as EXHIBIT A, and (C) the aggregate purchase price for the Shares, or
(ii) following the occurrence of the actions set forth in clause (i) above on
such other date as may be agreed to by the Company and the Purchaser. At the
Closing, the Company shall deliver to the Purchaser or the Purchaser's custodian
bank, in accordance with the Purchaser's delivery instructions, (A) a copy of
this Agreement which has been executed on behalf of the Company, and (B) one or
more stock certificates registered in the name of the Purchaser, or in such
nominee name(s) as designated by the Purchaser, representing the number of
Shares
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referred to in Section 2 above. The name(s) in which the stock certificates are
to be issued shall be set forth in the Stock Certificate Questionnaire attached
hereto as EXHIBIT A, as completed by Purchaser. The Company's obligation to
complete the purchase and sale of the Shares and deliver such stock
certificate(s) to the Purchaser at the Closing shall be subject to the following
conditions, any one or more of which may be waived in writing by the Company:
(a) subject to delivery of the Share certificates to the Purchaser or
Purchaser's custodian bank, receipt by the Company of immediately available
funds, by check or wire transfer, in the full amount of the purchase price for
the Shares being purchased hereunder; (b) the accuracy of the representations
and warranties made by the Purchaser herein as of the Closing; and (c) the
fulfillment of those undertakings of the Purchaser to be fulfilled prior to the
Closing. The Purchaser's obligation to accept delivery of such stock
certificate(s) and to pay for the Shares evidenced thereby shall be subject to
the following conditions: (a) the accuracy of the representations and warranties
made by the Company herein as of the Closing; (b) the purchase by Purchasers
other than the Purchaser hereunder, of a minimum of 800,000 Shares; and (c) the
fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
hereby represents and warrants to, and covenants with, the Purchaser as of the
date of this Agreement as follows:
4.1 ORGANIZATION AND QUALIFICATION. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to conduct its
business as currently conducted and is duly qualified as a foreign corporation
and in good standing in all jurisdictions in which the character of the property
owned or leased or the nature of the business transacted by it makes
qualification necessary (except where the failure to be so qualified would not
have a material adverse effect on the business, properties, financial condition
or results or operations of the Company).
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE AGREEMENTS. The
Company's execution, delivery and performance of this Agreement (a) has been
duly authorized by all requisite corporate action by the Company, and (b) will
not violate the Certificate or Bylaws of the Company, each as amended to date,
or violate or result in a breach of or constitute a default under any provision
of any material indenture, mortgage, agreement, contract or other material
instrument to which the Company or any subsidiary is a party or by which the
Company or any subsidiary or any of their respective properties or assets is
bound as of the date hereof. Upon execution and delivery, and assuming the valid
execution hereof by the Purchaser, this Agreement will constitute a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and except as the indemnification agreements
of the Company in Section 7.3 hereof may be legally unenforceable.
4.3 ISSUANCE, SALE AND DELIVERY OF THE SHARES. The authorized capital
stock of the Company consists of one hundred million (100,000,000) shares of
Common Stock, par value one-tenth of one cent ($.001) per share, forty-nine
million nine hundred eighty thousand eight
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hundred thirty-eight (49,980,838) shares of which are issued and outstanding as
of September 29, 1999, four million six hundred fifty-five thousand two hundred
forty-six (4,655,246) shares of which are subject to outstanding options as of
September 29, 1999, two million two hundred thirteen thousand five hundred
ninety (2,213,590) shares of which are reserved for future issuance to
employees, directors and consultants pursuant to the Company's stock plans,
including the Company's 1991 Stock Option Plan, the Company's Non-Employee
Directors' Stock Option Plan, the Company's Employee Stock Purchase Plan and the
Company's Directors' Deferred Compensation Plan as of September 29, 1999, and
one million five hundred fifty thousand nine hundred fifty (1,550,950) shares of
which are subject to outstanding warrants, and seven million five hundred
thousand (7,500,000) shares of Preferred Stock, par value one-tenth of one cent
($.001) per share, none of which, prior to the Closing, are issued and
outstanding. All issued and outstanding shares of the Company's Common Stock
have been duly authorized and validly issued, and are fully paid and
nonassessable. When issued, delivered to Purchaser or Purchaser's custodian bank
and paid for by Purchaser in accordance with the terms and conditions of this
Agreement, the Shares to be sold hereunder will be validly issued, fully paid
and nonassessable and will be delivered by the Company free and clear of all
liens, pledges, claims, encumbrances, security interests or other restrictions,
except for restrictions on transfer imposed to ensure compliance with the
Securities Act of 1933, as amended (the "Securities Act").
4.4 PUBLIC INFORMATION; FINANCIAL STATEMENTS. The Company represents
that it has furnished or will furnish, if requested by the Purchaser prior to
the Closing, to Purchaser copies of the Company's: (i) Annual Report on Form
10-K for the year ended December 31, 1998; (ii) Quarterly Reports on Form 10-Q
for the quarters ended March 31, 1999 and June 30, 1999; (iii) Notice of Annual
Meeting and Proxy Statement for the Company's 1999 Annual Meeting of
Stockholders, dated April 15, 1999; (iv) Registration Statement on Form S-3
(Registration No. 333-87033); and (v) press releases since June 30, 1999. All of
the foregoing public documents are collectively referred to herein as the
"Public Documents." The Company has filed in a timely manner all documents that
the Company was required to file with the Securities and Exchange Commission
(the "Commission") under Sections 13, 14(a) and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), during the twelve (12) months
preceding the date of this Agreement. As of their respective filing dates (or,
if amended, when amended), all documents filed by the Company with the
Commission (the "SEC Documents") complied in all material respects with the
requirements of the Exchange Act. As of their respective dates, none of the SEC
Documents contained any untrue statement of material fact or omitted to state a
material fact required (under the federal securities laws in connection with the
sale of the Shares) to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC
Documents (the "Financial Statements") comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto. The Financial Statements have
been prepared in accordance with generally accepted accounting principles
consistently applied and fairly present the financial position of the Company at
the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal,
recurring adjustments).
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4.5 NO MATERIAL CHANGE. As of the date hereof, there has been no
material adverse change and no material adverse development in the business,
properties, operations, financial condition, results of operations or prospects
of the Company since June 30, 1999.
4.6 ELIGIBILITY FOR FORM S-3. The Company represents and warrants as of
the date hereof that it meets the requirements for the use of Form S-3 for
registration of the sale by the Purchaser of the Shares, and for the period
during which the Company is required pursuant to Section 7.1(c) herein to keep
the Registration Statement (as defined below) effective, the Company shall file
all reports required to be filed by the Company with the Commission in a timely
manner and take all other necessary action so as to maintain such eligibility
for the use of Form S-3.
4.7 LITIGATION. Except as set forth in the Company's SEC Documents,
there is no pending or, to the Company's knowledge, threatened, action, suit or
other proceeding to which the Company is a party or to which its property or
assets are subject.
4.8 GOVERNMENTAL CONSENTS. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority on the part of the Company is
required in connection with the consummation of the transactions contemplated by
this Agreement except for (a) compliance with the securities and blue sky laws
in the states and other jurisdictions in which Shares are offered and/or sold,
which compliance will be effected by the Company in accordance with such laws,
and (b) the filing of a registration statement and all amendments thereto with
the Commission as contemplated by Section 7.1 of this Agreement.
4.9 USE OF PROCEEDS. The Company intends to use the proceeds from the
sale of the Shares for working capital purposes.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
The Purchaser represents and warrants to, and covenants with, the
Company as follows:
5.1 INVESTMENT REPRESENTATIONS. The Purchaser represents and warrants
to, and covenants with, the Company that: (i) the Purchaser, taking into account
the personnel and resources it can practically bring to bear on the purchase of
the Shares contemplated hereby, is knowledgeable, sophisticated and experienced
in making, and is qualified to make, decisions with respect to investments in
shares presenting an investment decision like that involved in the purchase of
the Shares, including investments in securities issued by the Company, and has
requested, received, reviewed and considered all information it deems relevant
in making an informed decision to purchase the Shares, including all of the
Company's Public Documents; (ii) the Purchaser is acquiring the number of Shares
referred to in Section 2 above for its own account for investment only and with
no present intention of distributing any of such Shares or any arrangement or
understanding with any other persons regarding the distribution of such Shares;
(iii) the Purchaser has completed or caused to be completed the Stock
Certificate Questionnaire attached hereto as EXHIBIT A and the information
provided therein by Purchaser is true and correct to the best knowledge of the
Purchaser as of the date hereof; (iv) the Purchaser has, in connection with its
decision to purchase the number of Shares set forth in Section 2 above, relied
solely upon the information delivered to the Purchaser as described in clause
(i)
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above and the representations and warranties of the Company contained herein;
and (v) the Purchaser is an "accredited investor" within the meaning of Rule 501
of Regulation D promulgated under the Securities Act.
5.2 REQUISITE POWER AND AUTHORITY. The Purchaser further represents and
warrants to, and covenants with, the Company that (i) the Purchaser has full
right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and (ii) upon the execution and delivery of this Agreement, this Agreement shall
constitute a valid and binding obligation of the Purchaser enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and except as the indemnification agreements of the Purchaser in Section 7.3
hereof may be legally unenforceable.
5.3 RULE 144. Purchaser acknowledges and agrees that the Shares
acquired by Purchaser hereunder must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act, which permits
limited resale of securities in a private placement subject to the satisfaction
of certain conditions, including, among other things: the availability of
certain current public information about the Company, the resale occurring not
less than one year after a party has purchased and paid for the security to be
sold, the sale being made through an unsolicited "broker's transaction" or in
transactions directly with a market maker (as said term is defined under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) and the number
of shares being sold during any three-month period not exceeding specified
limitations.
5.4 COVENANTS. The Purchaser hereby covenants with the Company as
follows: (i) prior to the effective date of the Registration Statement
referenced in Section 7.1(a) below (the "Effective Date"), the Purchaser shall
not transfer any Shares except in compliance with the Securities Act and the
rules and regulations promulgated thereunder, and any transferee of Shares prior
to the Effective Date shall agree in advance in a writing acceptable to the
Company to be subject to all of the provisions of this Agreement with respect to
the Shares; and (ii) commencing as of the Effective Date, the Purchaser shall
not make any sale of the Shares, if any, without effectively causing the
prospectus delivery requirement under the Securities Act to be satisfied, and
the Purchaser acknowledges and agrees that on and after the Effective Date, such
Shares are not transferable on the books of the Company unless the certificate
submitted to the transfer agent evidencing the Shares is accompanied by a
separate purchaser's certificate: (1) in the form of EXHIBIT B hereto, (2)
executed by the Purchaser or by an officer of, or other authorized person
designated by, the Purchaser, and (3) to the effect that (A) the Shares have
been sold in accordance with the Registration Statement and (B) the requirement
of delivering a current prospectus has been satisfied. The Purchaser
acknowledges that there may occasionally be times when the Company must suspend
the use of the prospectus forming a part of the Registration Statement until
such time as an amendment to the Registration Statement has been filed by the
Company and declared effective by the Securities and Exchange Commission (the
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"Commission"), or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Securities Exchange Act of 1934, as amended.
The Purchaser hereby covenants that it will not sell any Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser notice of the suspension of the use of said prospectus and ending
at the time the Company gives the Purchaser notice that the Purchaser may
thereafter effect sales pursuant to said prospectus. The Purchaser further
covenants to promptly notify the Company of the sale of any of its Shares.
6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and the Purchaser herein and
in the certificates for the Shares delivered pursuant hereto shall survive the
execution of this Agreement, the delivery to the Purchaser of the Shares being
purchased and the payment therefor.
7. REGISTRATION OF THE COMMON STOCK; COMPLIANCE WITH THE SECURITIES ACT.
7.1 REGISTRATION PROCEDURES AND EXPENSES. The Company shall:
(a) within 120 days following the closing, prepare and file with
the Commission a registration statement on Form S-3 (the "Registration
Statement") in order to register with the Commission the sale of all the Shares
(collectively, the "Registrable Securities") by the Purchasers from time to time
through underwriters, agents or otherwise, in negotiated or market transactions
or through the automated quotation system of Nasdaq or the facilities of any
national securities exchange on which the Company's Common Stock is then traded
or in privately negotiated transactions or pursuant to such other method or
methods of distribution as Purchaser may require. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Section 7.1 that the Purchaser shall furnish to the Company such information
regarding itself, the Registrable Securities to be sold by Purchaser, and the
intended method of disposition of such securities as shall be required to effect
the registration of the Registrable Securities. Notwithstanding the foregoing,
the Company shall not be required to file or effect a registration pursuant to
this Section 7.1 if and for so long as any condition specified in Section 7.1(c)
shall exist and the Company shall have notified the Purchaser's thereof in
accordance with such section;
(b) use reasonable efforts, subject to the receipt of necessary
information from the Purchasers, to cause the Registration Statement to become
effective as soon as commercially practicable following the filing thereof with
the Commission;
(c) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith and take such other actions as may be necessary to keep the
Registration Statement continually effective and not misleading until the
earliest of (A) the first anniversary date of the Closing, or (B) such date as
all of the Shares held by all of the Purchasers have been resold.
Notwithstanding the foregoing, each Purchaser acknowledges that there may
occasionally be times when the Company, in the good faith judgment of its Chief
Executive Officer or its Board of Directors, determines it must suspend such
Purchaser's ability to sell Shares pursuant to the Registration Statement until
such time as an amendment to the Registration Statement has been filed by the
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Company and declared effective by the Commission, or until such time as the
Company has filed an appropriate report with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (a "Suspension"). The Purchaser
agrees that, upon receipt of any notice from the Company of a Suspension, the
Purchaser will not sell any Shares pursuant to the Registration Statement until
the Purchaser is advised in writing by the Company that the use of the
applicable prospectus may be resumed;
(d) furnish to the Purchaser with respect to the Registrable
Securities registered under the Registration Statement such number of copies of
prospectuses and preliminary prospectuses in conformity with the requirements of
the Securities Act, in order to facilitate the public sale or other disposition
of all or any of the Registrable Securities by the Purchaser; provided, however,
that the obligation of the Company to deliver copies of prospectuses or
preliminary prospectuses to the Purchaser shall be subject to the receipt by the
Company of reasonable assurances from the Purchaser that the Purchaser will
comply with the applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection with any use of
such prospectuses or preliminary prospectuses;
(e) file documents required of the Company for normal blue sky
clearance in states specified in writing by the Purchaser; provided, however,
that the Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so qualified or
has not so consented; and
(f) bear all expenses incurred by the Company in connection with
the procedures in paragraphs (a) through (e) of this Section 7.1 and the
registration of the Registrable Securities pursuant to the Registration
Statement.
7.2 NOTIFICATION OF CHANGES. The Purchaser agrees that it will promptly
notify the Company of any changes in the material information set forth in the
Registration Statement regarding the Purchaser or its plan of distribution with
respect to the Registrable Securities, as applicable.
7.3 INDEMNIFICATION.
(a) the term "Selling Stockholder" shall mean the Purchaser and, if
the Purchaser is an institution, the Purchaser's directors or trustees, officers
and employees and each person who controls the Purchaser within the meaning of
the Securities Act;
(b) the term "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or relating to the
Registration Statement referred to in Section 7.1; and
(c) the term "untrue statement" shall include any untrue statement
or alleged untrue statement, or any omission or alleged omission, to state in
the Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
The Company agrees to indemnify and hold harmless each Selling
Stockholder from and against any losses, claims, damages or liabilities to which
such Selling Stockholder may become
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subject (under the Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of, or are based upon, any untrue statement contained in the Registration
Statement on the Effective Date thereof, or arise out of any failure by the
Company to fulfill any undertaking herein or included in the Registration
Statement, and the Company will reimburse such Selling Stockholder for any
reasonable legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that such loss, claim, damage or liability arises out of, or is based upon, an
untrue statement made in such Registration Statement in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Selling Stockholder specifically for use in preparation of the Registration
Statement, or the failure of such Selling Stockholder to comply with the
covenants and agreements contained in Section 5 or 7.2 hereof respecting sale of
the Registrable Securities or any statement or omission in any prospectus that
is corrected in any subsequent prospectus that was delivered to the Purchaser
prior to the pertinent sale or sales by the Purchaser.
The Purchaser agrees to indemnify and hold harmless the Company (and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act, each officer of the Company who signs the Registration
Statement and each director of the Company) from and against any losses, claims,
damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise),
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any failure to
comply with the covenants and agreements contained in Section 5 or 7.2 hereof
respecting sale of the Registrable Securities, or any untrue statement contained
in the Registration Statement on the Effective Date if such untrue statement was
made in reliance upon and in conformity with written information furnished by or
on behalf of the Purchaser specifically for use in preparation of the
Registration Statement, and the Purchaser will reimburse the Company (or such
officer, director or controlling person, as the case may be), for any legal or
other expenses reasonably incurred in investigating, defending or preparing to
defend any such action, proceeding or claim. In no event shall the liability of
the Purchaser hereunder be greater in amount than the dollar amount of the gross
proceeds received by the Purchaser upon the sale of Registrable Securities
giving rise to such indemnification obligation.
Promptly after receipt by any indemnified person of a notice of a claim
or the beginning of any action in respect of which indemnity is to be sought
against an indemnifying person pursuant to this Section 7.3, such indemnified
person shall notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions hereinafter stated,
in case any such action shall be brought against an indemnified person and such
indemnifying person shall have been notified thereof, such indemnifying person
shall be entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified person. After notice from the indemnifying person to such
indemnified person of its election to assume the defense thereof, such
indemnifying person shall not be liable to such indemnified person for any legal
expenses subsequently incurred by such indemnified person in connection with the
defense thereof; provided, however, that if there exists or shall exist a
conflict of interest that would make it inappropriate, in the opinion of counsel
to the indemnified person, for the same counsel to
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represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties.
If the indemnification provided for in this Section 7.3 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any losses, claims, damages or liabilities referred to herein, the
indemnifying party, in lieu of indemnifying such indemnified party thereunder,
shall to the extent permitted by applicable law contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the act or omission that resulted in such loss, claim, damage
or liability, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by a court of law by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission;
provided, however, that (i) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Shares who was not guilty of such fraudulent
misrepresentation, and (ii) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Shares shall be limited
in amount to the net amount of proceeds received by such seller from the sale of
such Shares.
The obligations of the Company and Purchaser under this Section 7.3
shall survive completion of any offering of Registrable Securities in a
Registration Statement and the termination of this Agreement. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
7.4 TERMINATION OF CONDITIONS AND OBLIGATIONS. Notwithstanding anything
stated herein to the contrary, the conditions precedent imposed by Section 5 or
this Section 7 upon the transferability of the Shares shall cease and terminate
as to any particular number of the Shares, when such Shares shall have been
effectively registered under the Securities Act and sold or otherwise disposed
of in accordance with the intended method of disposition set forth in the
Registration Statement covering such or at such time as an opinion of counsel
satisfactory to the Company shall have been rendered to the effect that such
conditions are not necessary in order to comply with the Securities Act.
The rights of the Purchaser hereunder, including the right to have the
Company register the Shares pursuant to this Agreement, shall be automatically
assigned by each Purchaser to any transferee of all or any portion of the
Shares, if: (a) the Purchaser agrees in writing with the transferee or assignee
to assign such rights, and a copy of such agreement is furnished to the Company
within a reasonable time after such assignment, (b) the Company is, within a
9.
13
reasonable time after such transfer or assignment, furnished with written notice
of (i) the name and address of such transferee or assignee, and (ii) the
securities with respect to which such registration rights are being transferred
or assigned, (c) following such transfer or assignment, the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act or applicable state securities laws, (d) at or before the time
the Company receives the written notice contemplated by clause (ii) of this
sentence, the transferee or assignee agrees in writing for the benefit of the
Company to be bound by all of the provisions contained herein, and (e) such
transfer shall have been made in accordance with the applicable requirements of
this Agreement, including without limitation the provisions of Section 5.4
herein.
7.5 LEGENDS. Each certificate representing Shares shall (unless
otherwise permitted by the provisions of the Agreement) be stamped or otherwise
imprinted with a legend substantially similar to the following (in addition to
any legend required under applicable state securities laws or as provided
elsewhere in this Agreement):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL
REGISTERED UNDER THE ACT OR, IN THE OPINION OF COUNSEL OR BASED ON
OTHER WRITTEN EVIDENCE IN THE FORM AND SUBSTANCE SATISFACTORY TO THE
ISSUER OF THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
8. BROKER'S FEE. Each of the parties hereto hereby represents that on the
basis of any actions and agreements by it, there are no brokers or finders
entitled to compensation in connection with the sale of Shares to the Purchaser.
9. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be sent by facsimile or mailed by first
class registered or certified airmail, or nationally recognized overnight
express courier postage prepaid, and shall be deemed given when so sent by
facsimile or mailed and shall be delivered as follows:
(a) if to the Company, to:
Amylin Pharmaceuticals, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
10.
14
with a copy so mailed to:
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
or to such other person at such other place as the Company shall designate to
the Purchaser in writing; and
(b) if to the Purchaser, at its address as set forth on the
signature page of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
10. CHANGES. Neither this Agreement nor any provision hereof may be
changed, waived, discharged, terminated, modified or amended except pursuant to
an instrument in writing signed by the Company and the Purchaser.
11. HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
12. SEVERABILITY. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California as applied to contracts
entered into and performed entirely in California by California residents,
without regard to conflicts of law principles.
14. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
15. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
this Agreement and the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
each of the parties hereto.
16. FURTHER ACTIONS. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in transactions of this nature in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
17. ENTIRE AGREEMENT. This Agreement and other documents delivered pursuant
hereto, including the exhibits, constitute the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
11.
15
18. PAYMENT OF FEES AND EXPENSES. Except as expressly set forth herein,
each of the Company and the Purchaser shall bear its own expenses and legal fees
incurred on its behalf with respect to this Agreement and the transactions
contemplated hereby.
19. CONFIDENTIAL DISCLOSURE AGREEMENT. Notwithstanding any provision of
this Agreement to the contrary, any confidential disclosure agreement previously
executed by the Company and the Purchaser in connection with the transactions
contemplated by this Agreement shall remain in full force and effect in
accordance with its terms following the execution of this Agreement and the
consummation of the transactions contemplated hereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
AMYLIN PHARMACEUTICALS, INC.
By:
--------------------------------
Xxxxx X. Xxxx, Esq.
Vice President and
General Counsel
PURCHASER
By: Number of Shares:
---------------------------- --------------------------
Name:
--------------------------
Title:
-------------------------
Notices to be sent to:
-------------------------------
-------------------------------
-------------------------------
LIST OF ATTACHMENTS:
EXHIBIT A - STOCK CERTIFICATE QUESTIONNAIRE
EXHIBIT B - PURCHASER'S CERTIFICATE
13.
17
EXHIBIT A
AMYLIN PHARMACEUTICALS, INC.
STOCK CERTIFICATE QUESTIONNAIRE
Pursuant to Section 3 of the Stock Purchase Agreement, please provide
us with the following information:
1. The exact name that your Shares are to be registered ____________________
in (this is the name that will appear on your stock
certificate(s)). You may use a nominee name
if appropriate:
2. The relationship between the Purchaser of the Shares ____________________
and the Registered Holder listed in response to
item 1 above:
3. The mailing address of the Registered Holder listed ____________________
in response to item 1 above:
4. The Social Security Number or Tax Identification ____________________
Number of the Registered Holder listed in the
response to item 1 above:
18
EXHIBIT B
Attention:
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
The undersigned, an officer of, or other person duly authorized by
________________________________ hereby certificates that he/she [said
institution] is the Purchaser of the shares evidenced by the attached
certificate, and as such, sold such shares on ____________________________ in
accordance with registration statement number
__________________________________________________ and the requirement of
delivering a current prospectus and current annual and quarterly reports (Forms
10-K and 10-Q) by the Company has been complied with in connection with such
sale.
Print or Type:
Name of Purchaser (Individual or Institution):_________________________________
Name of Individual representing Purchaser
(if an Institution) _________________________________
Title of Individual representing Purchaser
(if an Institution) _________________________________
Signature by:
Individual Purchaser or Individual
Representing Purchaser: _________________________________
19
SCHEDULE OF PURCHASERS
---------------------------------------------------------------------------
PURCHASER SHARES PURCHASED
---------------------------------------------------------------------------
Xxxxx Xxxxxxxx 2,400,000
---------------------------------------------------------------------------
Domain Partners IV, L.P. 195,320
---------------------------------------------------------------------------
XX XX Associates, L.P. 4,680
---------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 20,000
---------------------------------------------------------------------------
Xxxxxxxx Family Trust 20,000
---------------------------------------------------------------------------
VMN Associates 20,000
---------------------------------------------------------------------------
Xxxxxxxxx Capital Partners, X.X. XX 70,000
---------------------------------------------------------------------------
Xxxxxxxxx Capital Partners, L.P. III 110,000
---------------------------------------------------------------------------
Xxxxxxx X. and Xxxxxxx X. Xxxxxxxxx Trust 20,000
---------------------------------------------------------------------------
The Xxxxxx Children's Trust 30,000
---------------------------------------------------------------------------
The Xxxxxx Family Trust 50,000
---------------------------------------------------------------------------
Xxxxxx X. and Xxxxxx X. Xxxx, Xx. 30,000
---------------------------------------------------------------------------
Farview Management Co., L.P. 30,000
---------------------------------------------------------------------------
Deerfield Partners L.P. 492,000
---------------------------------------------------------------------------
Deerfield International Limited 108,000
---------------------------------------------------------------------------
Xxxxxxx X. Xxxxx 5,000
---------------------------------------------------------------------------
Xxxxx X. Xxxxx and Xxxx X. Xxxxx as Joint Tenants in 15,000
Common with Rights of Survivorship
---------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx 20,000
---------------------------------------------------------------------------
Xxxxx Xxxxx Xxxxx 20,000
---------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 40,000
---------------------------------------------------------------------------
TOTAL SHARES PURCHASED 3,700,000
---------------------------------------------------------------------------
