1
Exhibit 10.39
December 19, 1997
Xxxxxxxx X Xxxx
Xxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
RE: MARGIN ACCOUNT LOAN
Dear Xxxx and Xxx:
This letter sets forth our agreement regarding your margin account no.
231-19174 (the "Margin Account") with BT Xxxx Xxxxx Incorporated ("BTAW').
1. Concurrently herewith, Amylin Pharmaceuticals, Inc. (the "Company") will
deliver to BTAB the sum of $124,000 (the "Amylin Funds") to be held by BTAB
in an interest-bearing account (the "Amylin Account") solely as collateral
for your Margin Account obligations pursuant to the Guaranty Agreement in
the form attached hereto as Exhibit A (the "Cross Guaranty Agreement").
2. Subject to the terms of the Cross Guaranty Agreement, as of March 19,
1998 (or such earlier date as Amylin reasonably determines that the Amylin
Account is no longer necessary as collateral for your Margin Account
obligations), Amylin shall close the Amylin Account and any and all Amylin
Funds remaining in the Amylin Account (together with all accrued interest
thereon) shall be returned to Amylin as promptly as practicable.
3. To the extent that the full amount of the Amylin Funds, together with all
interest that may be accrued thereon at the rate applicable to the Amylin
Account is not returned to Amylin in accordance with paragraph 2, the
shortfall shall be deemed to be a loan by Amylin to you made as of March 19,
1998, which shall be repaid by you in accordance with the provisions of this
letter (the "Loan").
4. The Loan shall bear interest at an annual rate equal to 8.875%, with such
accrual to commence as of March 19, 1998. The full amount of the Loan
together with all accrued interest thereon shall be due and payable at any
time following March 19, 1998 on demand by Amylin.
2
Xxxxxxxx X. Xxxx
Xxxxxxxx Xxxx
December 19, 1997
Page 2
5. The Loan shall be secured by, and Amylin shall have a security interest
in, all shares of Amylin Common Stock and all options to purchase Amylin
Common Stock owned beneficially or of record by you now or at any time prior
to March 19, 1998 or prior to repayment of the Loan in full (the
"Securities"). You agree to promptly execute such further documentation and
promptly take such additional actions as Amylin may reasonably request
(including but not limited to execution of a Security Agreement in form
reasonably satisfactory to Amylin and the delivery to Amylin or its designee
of all certificates and agreements representing your Securities to the
extent you are permitted to do so under the terms of the BTAB Margin Account
or any other margin account to which you may be a party) in order to perfect
such security interest or otherwise carryout the purposes of this letter.
You agree that in no event will you sell or otherwise transfer any
Securities prior to March 19, 1998 and the repayment in full of the Loan;
provided that at your discretion you may elect to (i) sell shares of Common
Stock held in your Margin Account the proceeds of which will promptly be
applied to reduce your Margin Account indebtedness to BTAB and/or (ii)
permit BTAB to cover any margin call on your Margin Account which would
otherwise be covered by Amylin Funds.
6. Payments on the Loan will be credited first to any interest due and then
to outstanding principal. Except as set forth in paragraph 4, demand,
presentment, notice, notice of demand, notice for payment, protest and
notice of dishonor are hereby waived by you. No delay or omission in
exercising any rights under this letter shall operate as a waiver, and no
waiver under this letter will be effective unless it is done expressly and
in writing. The prevailing party shall be entitled to collect its reasonable
attorneys' fees in connection with any action by a party to enforce its
rights under this letter.
7. This letter agreement shall be binding on and inure to the benefit of
each of the parties hereto and their respective heirs, personal
representatives, successors and assigns. This letter agreement shall be
governed by and construed in accordance with the laws of the state of
California as such laws apply to agreements among California residents made
and to be performed entirely within the state of California. This letter
agreement may be executed in two or more counterparts, each of which shall
be deemed an original, all of which together shall constitute one and the
same instrument The terms of this letter agreement may only be altered or
amended by a writing duly executed by the parties.
3
Xxxxxxxx X. Xxxx
Xxxxxxxx Xxxx
December 19, 1997
Page 3
If you are in agreement with the foregoing, please sign and date the
enclosed copy of this letter agreement in the place indicated below and
return it to me.
Sincerely,
AMYLIN PHARMACEUTICALS. INC.
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Xxxxxxxx X. Xxxxxxx
Senior Vice President and Chief Financial Officer
Agreed to and accepted this 19th day of December, 1997:
XXXXXXXX X. XXXX XXXXXXXX XXXX
/s/ Xxxxxxxx X. Xxxx /s/ Xxxxxxxx Xxxx
--------------------------- ---------------------------
4
GUARANTY AGREEMENT
BT Alex. Xxxxx Incorporated
Attn: Retail Credit
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Gentlemen:
1. In consideration of your opening, and/or continuing, an account or
accounts (which separately or jointly, with any and all renewals thereof, are
hereinafter referred to as "said guaranteed account") with, or otherwise giving
credit in said guaranteed account to Xxxxxxxx X. Xxxx and/or Xxxxxxxx X. Xxxx
including with respect to the account bearing account number 231-19174
(hereinafter referred to as the "Customer"), on such terms and conditions as
may, from time to time, be agreed to between you and the Customer (notice of
which is hereby waived), the undersigned (hereinafter referred to as the
"Guarantor") hereby unconditionally agrees to pay to you, on demand, any
indebtedness which may now or hereafter be owing you by the Customer on said
guaranteed account to the extent that moneys are deposited in a separate BT
Alex. Xxxxx account #231-34796.
2. The Guarantor agrees that this guaranty shall be effective not only
with respect to said guaranteed account but also with respect to any and all
renewals thereof; that said guaranteed account may be changed from time to
time by the purchase or sale or exchange of securities or other property, or by
payments or by deliveries of securities or other property by or to or upon the
order of the Customer; and that said guaranteed account may be closed out by
you at any time; and that in general, you may deal with and accept the orders
of the Customer with respect to transactions in said guaranteed account,
without notice to the Guarantor, the same as if this guaranty had not been
given.
3. The Guarantor agrees that to secure said guaranteed account or to pay
any indebtedness due therein, the Guarantor hereby grants to you a security
interest in such money, securities or other property you may at any time hold
or have in any account or accounts of the Guarantor, or in which the Guarantor
may have an interest; that you may pledge and repledge any of such securities
or other property, either separately or with any other securities or property,
for such sum or a greater sum than may be due you in said guaranteed account,
and without retaining the possession or control for delivery of a like amount
of similar securities or property; that you may proceed at any time, in your
discretion, and without prior demand or notice, to enforce said lien by the
sale of any such securities or property of the Guarantor, in any manner and
upon such terms as you may determine. At any such sales or other disposition
you may yourself purchase the whole or any part of the collateral sold, free
from any right of redemption on the part of the undersigned, which right is
hereby waived and released. The undersigned further agrees that enforcement by
you of said lien in any manner, in whole or in part, shall not in any way
affect the continuing liability of the Guarantor for any remaining indebtedness
in said guaranteed account; that any demand on the Guarantor to perform the
obligation of the guaranty, or any action or proceedings brought to enforce the
liability of the Guarantor hereunder shall not release or otherwise affect said
lien; and that you shall at all times have both the liability of the
5
Guarantor and said lien to secure to you payment of any indebtedness in said
guaranteed account, enforcement of both of which may be pursued concurrently or
separately.
4. By written notice to you, the Guarantor may at any time
terminate its obligations and rights hereunder in respect to future
transactions in said guaranteed account; but notwithstanding such termination
as to future transactions the obligations of the Guarantor hereunder with
respect to any indebtedness in said guaranteed account, including any losses
incurred in liquidating said guaranteed account during a reasonable time
subsequent to the receipt of such notice, shall continue in full force and
effect until such indebtedness, including all interest due on said
indebtedness, has been paid in full to you.
5. The undersigned hereby agrees that this guaranty shall not be
impaired or otherwise affected by any failure to call for, take, hold, protect
or perfect, continue the perfection of or enforce any security interest in or
other lien upon, any collateral for said guaranteed accounts, or by failure to
exercise, delay in the exercising or waiver of, or forebearance with respect
to, any right or remedy available to you.
6. The undersigned hereby acknowledges that it has derived or
expects to derive a financial or other advantage from each and every extension
of credit granted to this Customer.
7. The undersigned agrees to pay on demand all expenses (including
reasonable expenses for legal services of any kind and cost of any insurance
and payment of taxes or other charges) of, or incidental to, the custody, care,
sales or collection of, or realization upon, any collateral in said guaranteed
account or in any way relating to the enforcement or protection of your rights
hereunder.
8. This guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time all or any part of any payment is rescinded
or must be restored or returned by you whether under any insolvency, bankruptcy
or reorganization proceeding or otherwise.
9. This guaranty is a guaranty of payment and not of collection,
and you shall be under no obligation to take any action against the Customer or
any other person liable with respect to said guaranteed account or resort to
any collateral security held by you as a condition precedent to the undersigned
being obligated to perform as agreed herein. The undersigned hereby waives any
rights to interpose any defense, counterclaim or offset of any nature and
description which it may have or which may exist between and among you, the
Customer and/or the undersigned.
11. This guaranty shall be binding upon the Guarantor and any
permitted assigns and shall inure to your benefit of any successor firm or
firms. This guaranty shall be construed in accordance with the laws of
the State of Maryland.
2
6
12. This guaranty embodies the entire agreement and understanding between
you and the undersigned with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
Guarantors:
----------
#231-34796
Amylin Pharmaceuticals, Inc. WITNESS:
Signed, /s/ XXXXXXXX X. XXXXXXX Signed, XXXXXXX XXXX
------------------------------ -------------------------
Senior Vice President & CFO
Dated, 12/19/97 Dated, 12/19/97
------------------------------- -------------------------
-------------------------------------
3
