Delaware | 2834 | 20-0422823 | ||
(State or Other Jurisdiction
of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Julio E. Vega
Bingham McCutchen LLP 150 Federal Street Boston, Massachusetts 02110-1726 (617) 951-8000 |
Douglas A. Branch
Vice President, General Counsel and Secretary Amicus Therapeutics, Inc. 6 Cedar Brook Drive Cranbury, New Jersey 08512 (609) 662-2029 |
Patrick OBrien
Ropes & Gray LLP One International Place Boston, Massachusetts 02110-1726 (617) 951-7000 |
The
information contained in this prospectus is not complete and may
be changed. We may not sell these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities and we are not soliciting offers to buy these
securities in any jurisdiction where the offer or sale is not
permitted.
|
Per Share |
Total
|
|||||||
Public offering price
|
$ | $ | ||||||
Underwriting discount
|
$ | $ | ||||||
Proceeds, before expenses
|
$ | $ |
Morgan Stanley | Merrill Lynch & Co. |
Lazard Capital Markets | Pacific Growth Equities, LLC |
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1
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Amigal for Fabry disease.
We are developing
Amigal for the treatment of patients with Fabry disease, which
commonly causes kidney failure and increased risk of heart
attack and stroke. We are currently conducting multiple Phase II
clinical trials of Amigal. We expect to complete our Phase II
trials of Amigal by the end of 2007.
Plicera for Gaucher disease.
We are developing
Plicera for the treatment of Gaucher disease, which commonly
causes an enlarged liver and spleen, abnormally low levels of
red blood cells and platelets, and skeletal complications. Some
patients also present with neurological complications. We are
currently conducting two Phase II clinical trials of Plicera in
Type I Gaucher patients. We expect to obtain preliminary results
from the first of these two trials by the end of 2007.
AT2220 for Pompe disease.
We are developing
AT2220 for the treatment of Pompe disease, which commonly causes
progressive muscle weakness, particularly affecting breathing,
mobility and heart function. We are currently conducting Phase I
clinical trials of AT2220 and expect to initiate a Phase II
clinical trial by the end of 2007.
2
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focus our initial efforts on developing pharmacological
chaperones for severe genetic diseases called lysosomal storage
disorders;
rapidly advance our lead programs;
leverage our proprietary approach to the discovery and
development of additional small molecules; and
build a targeted sales and marketing infrastructure.
3
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4
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Common stock we are offering
shares
shares
Over-allotment option
shares
Use of proceeds
We estimate that the net proceeds from this offering will be
approximately $ million, or
approximately $ million if
the underwriters exercise their over-allotment option in full,
assuming an initial public offering price of
$ per share, which is the midpoint
of the price range listed on the cover page of this prospectus,
after deducting estimated underwriting discounts and commissions
and offering expenses payable by us. We expect to use most of
the net proceeds from this offering to fund clinical trial
activities and preclinical research and development activities,
and the balance for other general corporate purposes. See
Use of Proceeds.
Risk factors
You should read the Risk Factors section of this
prospectus for a discussion of the factors to consider carefully
before deciding to purchase any shares of our common stock.
FOLD
19,174,000 shares of common stock issuable upon the
exercise of stock options outstanding as of April 25, 2007,
with a weighted average exercise price of $1.01 per share;
40,000 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of $0.75
per share; and
an aggregate
of shares
of common stock reserved for future issuance under our 2007
equity incentive plan as of the closing of this offering.
no exercise of the outstanding options or warrant to purchase
common stock described above; and
no exercise by the underwriters of their option to purchase
shares of common stock to cover over-allotments.
5
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7
Period from
Three Months Ended
February 4, 2002
Year Ended December 31,
March 31,
(Inception) to
2004
2005
2006
2006
2007
March 31, 2007
(unaudited)
(unaudited)
(unaudited)
(in thousands, except shares and per share data)
$
6,301
$
13,652
$
33,630
$
6,028
$
7,085
$
65,889
2,081
6,877
12,277
1,900
2,850
25,642
1,030
146
303
952
199
297
1,854
418
8,528
20,831
46,859
8,127
10,232
94,833
(8,528
)
(20,831
)
(46,859
)
(8,127
)
(10,232
)
(94,833
)
190
610
1,991
238
693
3,501
(550
)
(82
)
(273
)
(52
)
(92
)
(1,175
)
(2
)
(280
)
(22
)
(343
)
(64
)
(368
)
(1,182
)
(3
)
(1,182
)
(8,890
)
(20,584
)
(46,345
)
(8,287
)
(9,695
)
(94,057
)
83
612
695
(8,807
)
(19,972
)
(46,345
)
(8,287
)
(9,695
)
(93,362
)
(19,424
)
(19,424
)
(125
)
(139
)
(159
)
(41
)
(41
)
(492
)
$
(8,932
)
$
(20,111
)
$
(65,928
)
$
(8,328
)
$
(9,736
)
$
(113,278
)
$
(3.87
)
$
(6.54
)
$
(11.94
)
$
(2.06
)
$
(1.36
)
2,306,541
3,076,649
5,519,749
4,048,418
7,154,690
$
(46,345
)
$
(9,695
)
$
(0.37
)
$
(0.08
)
126,507,084
128,142,025
6
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As of March 31, 2007
Pro Forma as
Actual
Pro Forma
Adjusted
(unaudited)
(in thousands)
$
67,706
$
68,086
59,526
59,907
73,048
73,428
11,146
10,474
148,184
(93,362
)
(92,690
)
(86,282
)
62,954
Table of Contents
continue our ongoing Phase II clinical trials of Amigal for the
treatment of Fabry disease and potentially conduct later-stage
clinical trials of Amigal;
continue our ongoing Phase II clinical trials of Plicera for the
treatment of Gaucher disease and potentially conduct later-stage
clinical trials of Plicera;
continue our ongoing Phase I clinical trials of AT2220 for the
treatment of Pompe disease and potentially conduct later-stage
clinical trials of AT2220;
continue the research and development of additional product
candidates;
seek regulatory approvals for our product candidates that
successfully complete clinical trials;
establish a sales and marketing infrastructure to commercialize
products for which we may obtain regulatory approval; and
add operational, financial and management information systems
and personnel, including personnel to support our product
development efforts and our obligations as a public company.
8
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the progress and results of our clinical trials of Amigal,
Plicera and AT2220;
the scope, progress, results and costs of preclinical
development, laboratory testing and clinical trials for our
other product candidates;
the costs, timing and outcome of regulatory review of our
product candidates;
the number and development requirements of other product
candidates that we pursue;
the costs of commercialization activities, including product
marketing, sales and distribution;
the emergence of competing technologies and other adverse market
developments;
the costs of preparing, filing and prosecuting patent
applications and maintaining, enforcing and defending
intellectual property related claims;
the extent to which we acquire or invest in businesses, products
and technologies; and
our ability to establish collaborations and obtain milestone,
royalty or other payments from any such collaborators.
9
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obtaining supplies of Amigal, Plicera and AT2220 for completion
of our clinical trials on a timely basis;
successful completion of preclinical studies and clinical trials;
obtaining marketing approvals from the United States Food and
Drug Administration, or FDA, and similar regulatory authorities
outside the United States;
establishing commercial-scale manufacturing arrangements with
third party manufacturers whose manufacturing facilities are
operated in compliance with current good manufacturing practice,
or cGMP, regulations;
launching commercial sales of the product, whether alone or in
collaboration with others;
acceptance of the product by patients, the medical community and
third party payors;
competition from other companies and their therapies;
successful protection of our intellectual property rights from
competing products in the United States and abroad; and
a continued acceptable safety and efficacy profile of our
product candidates following approval.
10
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11
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12
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our preclinical tests or clinical trials may produce negative or
inconclusive results, and we may decide, or regulators may
require us, to conduct additional preclinical testing or
clinical trials or we may abandon projects that we expect to be
promising;
regulators or institutional review boards may not authorize us
to commence a clinical trial or conduct a clinical trial at a
prospective trial site;
conditions imposed on us by the FDA or any
non-United
States regulatory authority regarding the scope or design of our
clinical trials or may require us to resubmit our clinical trial
protocols to institutional review boards for re-inspection due
to changes in the regulatory environment;
the number of patients required for our clinical trials may be
larger than we anticipate or participants may drop out of our
clinical trials at a higher rate than we anticipate;
our third party contractors or clinical investigators may fail
to comply with regulatory requirements or fail to meet their
contractual obligations to us in a timely manner;
we might have to suspend or terminate one or more of our
clinical trials if we, the regulators or the institutional
review boards determine that the participants are being exposed
to unacceptable health risks;
regulators or institutional review boards may require that we
hold, suspend or terminate clinical research for various
reasons, including noncompliance with regulatory requirements;
the cost of our clinical trials may be greater than we
anticipate;
the supply or quality of our product candidates or other
materials necessary to conduct our clinical trials may be
insufficient or inadequate or we may not be able to reach
agreements on acceptable terms with prospective clinical
research organizations; and
the effects of our product candidates may not be the desired
effects or may include undesirable side effects or the product
candidates may have other unexpected characteristics.
be delayed in obtaining, or may not be able to obtain, marketing
approval for one or more of our product candidates;
obtain approval for indications that are not as broad as
intended or entirely different than those indications for which
we sought approval; or
have the product removed from the market after obtaining
marketing approval.
13
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the prevalence and severity of any side effects, including any
limitations or warnings contained in a products approved
labeling;
the efficacy and potential advantages over alternative
treatments;
the pricing of our product candidates;
relative convenience and ease of administration;
the willingness of the target patient population to try new
therapies and of physicians to prescribe these therapies;
the strength of marketing and distribution support and timing of
market introduction of competitive products;
publicity concerning our products or competing products and
treatments; and
sufficient third party insurance coverage or reimbursement.
a covered benefit under its health plan;
safe, effective and medically necessary;
appropriate for the specific patient;
cost-effective; and
neither experimental nor investigational.
14
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our inability to recruit and retain adequate numbers of
effective sales and marketing personnel;
the inability of sales personnel to obtain access to or persuade
adequate numbers of physicians to prescribe our products;
the lack of complementary products to be offered by our sales
personnel, which may put us at a competitive disadvantage
against companies with broader product lines;
unforeseen costs associated with creating our own sales and
marketing team or with entering into a partnering agreement with
an independent sales and marketing organization; and
efforts by our competitors to commercialize products at or about
the time when our product candidates would be coming to market.
15
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we may not be able to control the amount and timing of resources
that our distributors may devote to the commercialization of our
product candidates;
our distributors may experience financial difficulties;
business combinations or significant changes in a
distributors business strategy may also adversely affect a
distributors willingness or ability to complete its
obligations under any arrangement; and
these arrangements are often terminated or allowed to expire,
which could interrupt the marketing and sales of a product and
decrease our revenue.
decreased demand for any product candidates or products that we
may develop;
damage to our reputation;
regulatory investigations that could require costly recalls or
product modifications;
withdrawal of clinical trial participants;
costs to defend the related litigation;
substantial monetary awards to trial participants or patients,
including awards that substantially exceed our product liability
insurance, which we would then be required to pay from other
sources, if available, and would damage our ability to obtain
liability insurance at reasonable costs, or at all, in the
future;
loss of revenue;
the diversion of managements attention from managing our
business; and
the inability to commercialize any products that we may develop.
16
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17
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reliance on the third party for regulatory compliance and
quality assurance;
limitations on supply availability resulting from capacity and
scheduling constraints of the third parties;
impact on our reputation in the marketplace if manufacturers of
our products, once commercialized, fail to meet the demands of
our customers;
the possible breach of the manufacturing agreement by the third
party because of factors beyond our control; and
the possible termination or nonrenewal of the agreement by the
third party, based on its own business priorities, at a time
that is costly or inconvenient for us.
18
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19
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our collaboration agreements are likely to be for fixed terms
and subject to termination by our collaborators in the event of
a material breach or lack of scientific progress by us;
our collaborators are likely to have the first right to maintain
or defend our intellectual property rights and, although we
would likely have the right to assume the maintenance and
defense of our intellectual property rights if our collaborators
do not, our ability to do so may be compromised by our
collaborators acts or omissions; and
20
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our collaborators may utilize our intellectual property rights
in such a way as to invite litigation that could jeopardize or
invalidate our intellectual property rights or expose us to
potential liability.
we or our licensors were the first to make the inventions
covered by each of our pending patent applications;
we or our licensors were the first to file patent applications
for these inventions;
others will not independently develop similar or alternative
technologies or duplicate any of our technologies;
any patents issued to us or our licensors will provide a basis
for commercially viable products, will provide us with any
competitive advantages or will not be challenged by third
parties;
we will develop additional proprietary technologies that are
patentable;
we will file patent applications for new proprietary
technologies promptly or at all;
our patents will not expire prior to or shortly after commencing
commercialization of a product; or
the patents of others will not have a negative effect on our
ability to do business.
21
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We do not hold composition of matter patents covering Amigal and
AT2220, two of our three lead product candidates. Composition of
matter patents can provide protection for pharmaceutical
products to the extent that the specifically covered
compositions are important. For our product candidates for which
we do not hold composition of matter patents, competitors who
obtain the requisite regulatory approval can offer products with
the same composition as our products so long as the competitors
do not infringe any method of use patents that we may hold.
For some of our product candidates, the principal patent
protection that covers, or that we expect will cover, our
product candidate is a method of use patent. This type of patent
only protects the product when used or sold for the specified
method. However, this type of patent does not limit a competitor
from making and marketing a product that is identical to our
product that is labeled for an indication that is outside of the
patented method, or for which there is a substantial use in
commerce outside the patented method.
22
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23
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our failure to demonstrate to the satisfaction of the FDA or
comparable regulatory authorities that a product candidate is
safe and effective for a particular indication;
the results of clinical trials may not meet the level of
statistical significance required by the FDA or comparable
regulatory authorities for approval;
our inability to demonstrate that a product candidates
benefits outweigh its risks;
our inability to demonstrate that the product candidate presents
an advantage over existing therapies;
24
Table of Contents
the FDAs or comparable regulatory authorities
disagreement with the manner in which we interpret the data from
preclinical studies or clinical trials;
the FDAs or comparable regulatory authorities
failure to approve the manufacturing processes, quality
procedures or manufacturing facilities of third party
manufacturers with which we contract for clinical or commercial
supplies; and
a change in the approval policies or regulations of the FDA or
comparable regulatory authorities or a change in the laws
governing the approval process.
regulatory authorities may require the addition of restrictive
labeling statements;
regulatory authorities may withdraw their approval of the
product; and
we may be required to change the way the product is administered
or conduct additional clinical trials.
25
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restrictions on such products, manufacturers or manufacturing
processes;
warning letters;
withdrawal of the products from the market;
refusal to approve pending applications or supplements to
approved applications that we submit;
voluntary or mandatory recall;
fines;
suspension or withdrawal of regulatory approvals or refusal to
approve pending applications or supplements to approved
applications that we submit;
refusal to permit the import or export of our products;
product seizure or detentions;
injunctions or the imposition of civil or criminal penalties; and
adverse publicity.
26
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27
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establish a classified board of directors, and, as a result, not
all directors are elected at one time;
allow the authorized number of our directors to be changed only
by resolution of our board of directors;
28
Table of Contents
limit the manner in which stockholders can remove directors from
our board of directors;
establish advance notice requirements for stockholder proposals
that can be acted on at stockholder meetings and nominations to
our board of directors;
require that stockholder actions must be effected at a duly
called stockholder meeting and prohibit actions by our
stockholders by written consent;
limit who may call stockholder meetings;
authorize our board of directors to issue preferred stock,
without stockholder approval, which could be used to institute a
poison pill that would work to dilute the stock
ownership of a potential hostile acquirer, effectively
preventing acquisitions that have not been approved by our board
of directors; and
require the approval of the holders of at least 67% of the votes
that all our stockholders would be entitled to cast to amend or
repeal certain provisions of our charter or bylaws.
results of clinical trials of our product candidates or those of
our competitors;
29
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our entry into or the loss of a significant collaboration;
regulatory or legal developments in the United States and other
countries, including changes in the health care payment systems;
variations in our financial results or those of companies that
are perceived to be similar to us;
changes in the structure of healthcare payment systems;
market conditions in the pharmaceutical and biotechnology
sectors and issuance of new or changed securities analysts
reports or recommendations;
general economic, industry and market conditions;
results of clinical trials conducted by others on drugs that
would compete with our product candidates;
developments or disputes concerning patents or other proprietary
rights;
public concern over our product candidates or any products
approved in the future;
litigation;
future sales or anticipated sales of our common stock by us or
our stockholders; and
the other factors described in this Risk Factors
section.
30
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31
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our plans to develop and commercialize Amigal, Plicera and
AT2220;
our ongoing and planned discovery programs, preclinical studies
and clinical trials;
our ability to enter into selective collaboration arrangements;
the timing of and our ability to obtain and maintain regulatory
approvals for our product candidates;
the rate and degree of market acceptance and clinical utility of
our products;
our ability to quickly and efficiently identify and develop
product candidates;
the extent to which our scientific approach may potentially
address a broad range of diseases across multiple therapeutic
areas;
our commercialization, marketing and manufacturing capabilities
and strategy;
our intellectual property position; and
our estimates regarding expenses, future revenues, capital
requirements and needs for additional financing.
32
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| $ to $ million for clinical development of Amigal for the treatment of Fabry disease; | |
| $ to $ million for clinical development of Plicera for the treatment of Gaucher disease; | |
| $ to $ million for clinical development of AT2220 for the treatment of Pompe disease; |
| $ to $ million for research and development activities relating to additional preclinical programs; and |
| the balance, if any, to fund working capital and other general corporate purposes, which may include the acquisition or licensing of complementary technologies, products or businesses. |
33
on an actual basis;
on a pro forma basis to give effect to the automatic exercise
for cash upon the completion of this offering of all outstanding
warrants to purchase 447,583 shares of series B
redeemable convertible preferred stock for proceeds of $380,446,
the reduction of $672,418 associated with the elimination of our
warrant liability, and the automatic conversion of all shares of
our redeemable convertible preferred stock into an aggregate of
120,987,335 shares of common stock outstanding upon the
completion of this offering; and
on a pro forma as adjusted basis to give further effect to our
issuance and sale of shares of common stock in this offering at
an assumed initial public offering price of
$ per share, which is the midpoint
of the price range listed on the cover page of this prospectus,
after deducting estimated underwriting discounts and commissions
and offering expenses payable by us.
As of March 31, 2007
Pro
Pro Forma
Actual
Forma
As Adjusted
(unaudited)
(unaudited)
(unaudited)
(in thousands)
$
3,250
$
3,250
2,477
30,895
54,878
59,934
82
1,292
6,981
154,335
17
17
(93,362
)
(92,690
)
$
(86,282
)
$
62,954
$
65,152
$
66,205
(1)
A $1.00 increase (decrease) in the
assumed initial public offering price of
$ per share would increase
(decrease) each of cash, and cash equivalents and short-term
investments, additional paid-in capital, total
stockholders equity and total capitalization by
approximately $ million,
assuming the number of shares offered by us, as set forth on the
cover page of this prospectus, remains the same and after
deducting the estimated underwriting discounts and commissions
and estimated offering expenses payable by us.
34
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12,855,174 shares of common stock issuable upon exercise of
options outstanding as of March 31, 2007 at a weighted
average exercise price of $0.61 per share;
40,000 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of $0.75
per share; and
an aggregate
of shares
of common stock reserved for future issuance under our 2007
equity incentive plan as of the closing of this offering.
35
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$
$
$
36
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$
$
$
$
$
$
$
Total
Average
Shares Purchased
Consideration
Price Per
Number
Percent
Amount
Percent
Share
%
%
$
100
%
100
%
(1)
A $1.00 increase (decrease) in the
assumed initial public offering price of
$ per share would increase
(decrease) the total consideration paid by new investors by
$ million and increase
(decrease) the percentage of total consideration paid by new
investors by approximately %,
assuming that the number of shares offered by us, as set forth
on the cover page of this prospectus, remains the same.
12,855,174 shares of common stock issuable upon exercise of
stock options outstanding as of March 31, 2007 at a
weighted average exercise price of $0.61 per share;
40,000 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of $0.75
per share; and
an aggregate
of shares
of common stock reserved for future issuance under our 2007
equity incentive plan as of the closing of this offering.
the percentage of shares of common stock held by existing
stockholders will decrease to
approximately % of the total number
of shares of our common stock outstanding after this offering;
and
the pro forma as adjusted number of shares held by new investors
will be increased
to ,
or approximately %, of the total
pro forma as adjusted number of shares of our common stock
outstanding after this offering.
37
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39
Period from
Period from
February 4,
February 4,
2002
2002
(Inception) to
Three Months Ended
(Inception) to
December 31,
Year Ended December 31,
March 31,
March 31,
2002
2003
2004
2005
2006
2006
2007
2007
(unaudited)
(unaudited)
(unaudited)
(in thousands, except shares and per share data)
$
788
$
4,433
$
6,301
$
13,652
$
33,630
$
6,028
7,085
65,889
552
1,005
2,081
6,877
12,277
1,900
2,850
25,642
1,030
1,030
24
132
146
303
952
199
297
1,854
418
418
1,783
6,600
8,528
20,831
46,859
8,127
10,232
94,833
(1,783
)
(6,600
)
(8,528
)
(20,831
)
(46,859
)
(8,127
)
(10,232
)
(94,833
)
13
5
190
610
1,991
238
693
3,501
(6
)
(172
)
(550
)
(82
)
(273
)
(52
)
(92
)
(1,175
)
(2
)
(280
)
95
(343
)
(64
)
(368
)
(1,182
)
(3
)
(1,182
)
(1,776
)
(6,768
)
(8,890
)
(20,584
)
(46,345
)
(8,287
)
(9,695
)
(94,057
)
83
612
695
(1,776
)
(6,768
)
(8,807
)
(19,972
)
(46,345
)
(8,287
)
(9,695
)
(93,362
)
(19,424
)
(19,424
)
(10
)
(17
)
(126
)
(139
)
(159
)
(41
)
(41
)
(492
)
$
(1,786
)
$
(6,785
)
$
(8,933
)
$
(20,111
)
$
(65,928
)
$
(8,328
)
$
(9,736
)
(113,278
)
$
(2.94
)
$
(3.87
)
$
(6.54
)
$
(11.94
)
$
(2.06
)
$
(1.36
)
2,306,541
2,306,541
3,076,649
5,519,749
4,048,418
7,154,690
$
(46,345
)
$
(9,695
)
$
(0.37
)
$
(0.08
)
126,507,084
128,142,025
38
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As of December 31,
As of March 31,
2002
2003
2004
2005
2006
2007
(unaudited)
(in thousands)
$
1,341
$
15
$
4,336
$
24,418
$
54,699
$
67,706
947
(5,588
)
3,569
22,267
44,814
59,526
1,919
501
5,073
28,670
59,646
73,048
752
5,776
1,346
4,031
13,071
11,146
2,416
2,432
20,013
60,469
124,091
148,184
(1,775
)
(8,503
)
(17,351
)
(37,322
)
(83,667
)
(93,362
)
$
(1,249
)
$
(7,708
)
$
(16,287
)
$
(35,830
)
$
(77,515
)
$
(86,282
)
Table of Contents
40
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
internal costs associated with our research activities;
payments we make to third party contract research organizations,
contract manufacturers, investigative sites, and consultants;
technology and intellectual property license costs;
manufacturing development costs;
personnel related expenses, including salaries, benefits,
travel, and related costs for the personnel involved in drug
discovery and development;
activities relating to regulatory filings and the advancement of
our product candidates through preclinical studies and clinical
trials; and
facilities and other allocated expenses, which include direct
and allocated expenses for rent, facility maintenance, as well
as laboratory and other supplies.
Table of Contents
Period from
February 4, 2002
Three Months Ended
(Inception) to
Year Ended December 31,
March 31,
March 31,
2004
2005
2006
2006
2007
2007
$
4,547
$
5,579
$
3,361
$
849
$
591
$
16,973
26
2,109
9,905
1,360
2,027
13,757
374
4,427
129
938
5,701
4,573
8,062
17,693
2,338
3,556
36,431
1,363
3,581
8,187
1,642
2,299
17,009
365
2,009
7,750
2,048
1,230
12,449
1,728
5,590
15,937
3,690
3,529
29,458
$
6,301
$
13,652
$
33,630
$
6,028
$
7,085
$
65,889
(1)
Other project costs are leveraged
across multiple projects.
(2)
Other costs include facility,
supply, overhead, and licensing costs that support multiple
clinical and preclinical projects.
the number of clinical sites included in the trials;
the length of time required to enroll suitable patients;
the number of patients that ultimately participate in the
trials; and
the results of our clinical trials.
41
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42
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fees owed to contract research organizations in connection with
preclinical and toxicology studies and clinical trials;
fees paid to investigative sites in connection with clinical
trials;
fees owed to contract manufacturers in connection with the
production of clinical trial materials;
fees owed for professional services, and
unpaid salaries, wages, and benefits.
43
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Three Months
Three Months
Year Ended
Ended
Ended
December 31, 2006
March 31, 2006
March 31, 2007
74.8
%
72.7
%
78.8
%
4.7
%
4.6
%
4.7
%
6.25
6.25
6.25
$
0.00
$
0.00
$
0.00
44
Table of Contents
Retrospective
Fair Value
Intrinsic
Number of
Average
Estimate per
Value
Options
Exercise
Common
per
Granted
Price
Share
Share
3,037,037
$
0.09
$
0.31
$
0.22
1,768,748
0.09
0.77
0.68
315,500
0.22
0.95
0.73
2,351,000
0.71
1.14
0.43
104,500
0.71
1.44
0.73
7,576,785
Average
Average
Fair Value
Intrinsic
Number of
Average
Estimate per
Value
Options
Exercise
Common
per
Granted
Price
Share
Share
5,895,000
$
0.71
$
1.83
(1)
$
1.12
899,500
1.09
1.09
405,000
1.09
1.09
339,000
1.22
1.22
7,538,500
(1)
Retrospectively determined fair
value for financial reporting purposes.
Average
Average
Fair Value
Intrinsic
Number of
Average
Estimate per
Value
Options
Exercise
Common
per
Granted
Price
Share
Share
134,000
$
1.32
$
1.32
$
6,422,000
1.79
1.79
6,556,000
45
Table of Contents
our expected pre-IPO valuation;
a risk-adjusted discount rate associated with the IPO scenario;
the liquidation preferences of our redeemable convertible
preferred stock;
appropriate discount for lack of marketability assuming we
remained a private company;
the expected probability of completing an IPO versus remaining a
private company or completing a merger or acquisition; and
the estimated timing of a potential IPO.
The reassessed fair value for financial reporting purposes of
common stock underlying 3,037,037 options granted to employees
during the period from January 2005 through May 2005 was $0.31
per share. This valuation was attributable to the hiring of our
President and Chief Executive Officer and other members
46
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of executive management and a relatively low probability
estimate for the IPO scenario under the PWER method.
The reassessed fair value for financial reporting purposes of
common stock underlying 1,768,748 options granted to employees
during the period from June 2005 through July 2005 was
determined to be $0.77 per share based on the ongoing clinical
trial of Amigal, additional development of our preclinical
programs, and an increased probability estimate for the IPO
scenario under the PWER method due to progress made on our
preclinical programs.
The reassessed fair value for financial reporting purposes of
common stock underlying 315,500 options granted to employees
during the period from August 2005 through September 2005 was
determined to be $0.95 per share. This increase in valuation was
based on the completion of Phase I clinical trials for Amigal
and completion of our series C redeemable convertible
preferred stock financing of $55 million.
The reassessed fair value for financial reporting purposes of
common stock underlying 2,351,000 options granted to employees
during the period from October 2005 through November 2005 was
determined to be $1.14 per share. This increase was primarily
based on positive developments in the capital markets for early
stage life science companies, the start of Phase II clinical
trials for Amigal, and further preclinical development of our
other programs.
The reassessed fair value for financial reporting purposes of
common stock underlying 104,500 options granted to employees in
December 2005 and 92,500 options granted to employees in the
period from January 1, 2006 to February 22, 2006 was
determined to be $1.44 per share. This increase was primarily
based on preclinical development of Plicera and AT2220, as well
as an acceleration of our IPO planning associated with early
internal discussions regarding a potential IPO.
The reassessed fair value for financial reporting purposes of
common stock underlying 5,802,500 options granted to employees
and directors in the period from February 28, 2006 to
March 27, 2006 was determined to be $1.84 per share. This
increase was primarily based on initial data from our Phase II
studies in Fabry disease, leading to an increased probability of
the IPO scenario in the PWER method and a further acceleration
of our IPO timeline.
The reassessed fair value for financial reporting purposes of
common stock at March 31, 2006 was determined to be $2.15
per share. No options were granted on this date. This increase
was primarily based on our board of directors resolution
to pursue an IPO and an increase in probability of the IPO
scenario under the PWER method. During this timeframe, we
believed that an IPO was imminent and that the common stock
price was set at what we believed was 90% of the midpoint of the
expected IPO price range.
The fair value of common stock underlying 1,304,500 options
granted to employees during the period from June to September of
2006 was determined to be $1.09 per share. This decrease was
primarily the result of slower than anticipated enrollment in
our Phase II clinical trials for Fabry and worsening market
conditions as evidenced by the valuations of Biotech IPOs in the
second quarter of 2006, the decline in the Nasdaq Biotechnology
Index during the same period, and our extended delay and
subsequent withdrawal of a planned IPO in 2006 which
significantly reduced the probability of what we had previously
believed to be an imminent IPO event.
The fair value of common stock underlying 339,000 options
granted to employees during the fourth quarter of 2006 was
determined to be $1.22 per share. This increase was primarily
based on a comparison to improved pre-money IPO values of
biotechnology and emerging pharmaceutical companies at a similar
stage of development to ours, an increased probability estimate
for the IPO scenario under the PWER method subsequent to
the completion of our Series D financing and an increase in
the probability that we merge with or are acquired by another
company.
The fair value of common stock underlying 134,000 options
granted to employees during the first quarter of 2007 was
determined to be $1.32 per share. This increase was primarily
based on an increase
47
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of the probability estimate for the IPO scenario under the PWER
method associated with the commencement of Phase I clinical
trials for AT2220.
The fair value of common stock underlying 6,432,000 options
granted to employees during April of 2007 was determined to be
$1.79 per share. This increase was primarily based on a
significant increase of the probability estimate for the IPO
scenario under the PWER method attributable to the completion of
enrollment for our Phase II clinical trials for Amigal,
data from our preclinical and Phase I clinical trials of
Amigal, data from our preclinical and Phase I clinical
trials from Plicera, and our board of directors resolution to
pursue an IPO and file a
Form S-1
with the SEC. In connection with the increase of the probability
of the IPO scenario, the probability of a merger or acquisition
occurring was reduced. During this timeframe, we believed that
an IPO was imminent and that the common stock price was set at
what we believed was 90% of the midpoint of the expected IPO
price range.
Three Months
Three Months
Years Ended December 31,
Ended
Ended
2004
2005
2006
March 31, 2006
March 2007
$
(8,807,102
)
$
(19,972,289
)
$
(46,344,910
)
$
(8,287,253
)
$
(9,694,939
)
(19,424,367
)
(125,733
)
(138,743
)
(158,802
)
(40,611
)
(40,988
)
$
(8,932,835
)
$
(20,111,032
)
$
(65,928,079
)
$
(8,327,864
)
$
(9,735,927
)
2,306,541
3,076,649
5,519,749
4,048,418
7,154,690
48
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49
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Approximate
Year
No. Shares
Amount
(1)
2002
3,333,334
$
2,500,000
2004, 2005, 2006
36,578,011
31,091,307
2005, 2006
43,650,262
54,999,332
2006, 2007
36,978,145
59,999,999
120,539,752
$
148,590,638
(1)
Represents gross proceeds.
50
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51
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completion of Phase II clinical trials;
commencement of Phase III clinical trials;
submission of an NDA to the FDA or foreign equivalents; and
receipt of marketing approval from the FDA or foreign
equivalents.
52
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Less than
1-3
3-5
Over 5
Total
1 Year
Years
Years
Years
$
7,631,820
$
1,629,181
$
4,477,324
$
1,525,315
4,113,425
1,624,727
2,488,698
1,850,669
1,388,002
462,667
$
13,595,914
$
4,641,910
$
7,428,689
$
1,525,315
(1)
This table does not include
(a) any milestone payments which may become payable to
third parties under license agreements as the timing and
likelihood of such payments are not known, (b) any royalty
payments to third parties as the amounts of such payments,
timing and/or the likelihood of such payments are not known,
(c) amounts, if any, that may be committed in the future to
construct additional facilities, and (d) contracts that are
entered into in the ordinary course of business which are not
material in the aggregate in any period presented above.
53
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54
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89
Amigal for Fabry disease.
We are developing
Amigal for the treatment of Fabry disease and are currently
conducting multiple Phase II clinical trials of Amigal. We
expect to complete these trials by the end of 2007.
Plicera for Gaucher disease.
We are developing
Plicera for the treatment of Gaucher disease and are currently
conducting two Phase II clinical trials of Plicera in Type
I Gaucher patients. We expect to obtain preliminary results from
the first of these two trials by the end of 2007.
55
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AT2220 for Pompe disease.
We are developing
AT2220 for the treatment of Pompe disease, and are currently
conducting Phase I clinical trials of AT2220. We expect to
initiate a Phase II clinical trial of AT2220 by the end of
2007.
56
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Variable tissue distribution
Broad tissue distribution,
including brain
Weekly or every other week
intravenous infusion
Oral administration
Recombinant protein manufacturing
Chemical synthesis
Indication
Fabry Disease
Phase II
Amicus
Gaucher Disease
Phase II
Amicus
Pompe Disease
Phase I
Amicus
57
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58
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59
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60
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Amigal increased α-GAL enzyme levels in cells derived from
a variety of different Fabry disease patients. Over 60 different
α-GAL missense mutations have been examined in cell culture
assays with approximately 65% showing an increase in α-GAL
enzyme levels after incubation with Amigal for several days.
Treatment of normal mice and mice that produce a form of human
α-GAL resulted in a dose-dependent increase in α-GAL
enzyme levels in a variety of tissues including skin, liver,
heart, kidney and spleen.
Treatment of mice that produce a form of human α-GAL
resulted in both an increase of α-GAL enzyme levels and a
decrease in GL-3 levels in skin, heart and kidney.
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Single Dose Phase I Trial.
Our
single-dose Phase I trial was a single center, randomized,
dose ranging study in healthy volunteers. The clinical phase
began in July 2004 and was completed in November 2004. The study
consisted of a total of 32 healthy volunteers divided into four
groups of eight subjects. Six subjects in each group received
Amigal and two subjects received placebo. All subjects received
single doses of placebo or 25 mg, 75 mg, 225 mg
or 675 mg of Amigal and were evaluated on Day 1 and on Day
8. The objectives of the study were to evaluate the safety and
pharmacokinetics of Amigal in healthy volunteers.
Multiple-Dose Phase I Trial.
Our
multiple-dose Phase I trial was a single center,
randomized, dose ranging study in healthy volunteers. The
clinical phase began in December 2004 and was completed in
January 2005. The study consisted of a total of 16 healthy
volunteers divided into two groups of eight subjects. Six
subjects in each group received Amigal and two subjects received
placebo. All subjects in one group received placebo or
50 mg twice a day for seven days, and all subjects in the
other group received placebo or 150 mg twice a day for
seven days. Subjects were evaluated at the beginning of the
study, on Day 7 after seven days of treatment and on Day 14
after a seven day washout period. The objectives of the study
were to evaluate the safety and pharmacokinetics of Amigal in
healthy volunteers and to measure α-GAL enzyme levels in
white blood cells of healthy volunteers treated with Amigal.
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Phase II Study 201.
Nine patients have
been treated in this study. Enrollment is complete and the study
is expected to be finished by the end of 2007. The study
consists of treatment with Amigal for a period of twelve weeks
with a possible extension up to 48 weeks in male Fabry
disease patients that are naïve to enzyme replacement
therapy or have not had enzyme replacement therapy for at least
one month. Eight patients received 25 mg of Amigal twice a
day for two weeks, followed by 100 mg of Amigal twice a day
for two weeks, followed by 250 mg of Amigal twice a day for
two weeks and followed by 25 mg of Amigal twice a day for
six weeks. Patients participating in the extension portion of
the study are receiving 50 mg of Amigal once per day and
are expected to receive 150 mg of Amigal every other day
after a planned protocol amendment is completed.
Phase II Study 202.
Three patients have
been treated in this study and additional patients are in
screening. Enrollment is complete and the study is expected to
be finished by the end of 2007. The study consists of treatment
with Amigal for a period of 24 weeks with a possible
extension to 48 weeks in male Fabry disease patients that
are naïve to enzyme replacement therapy or have not had
enzyme replacement therapy for at least one month. All patients
will receive 150 mg of Amigal every other day during the
duration of the study.
Phase II Study 203.
Five patients have
been treated in this study and additional patients are in
screening. Enrollment is complete and the study is expected to
be finished by the end of 2007. The study consists of treatment
with Amigal for a period of 12 weeks with a possible
extension to 48 weeks in male Fabry disease patients that
are naïve to enzyme replacement therapy or have not had
enzyme replacement therapy for at least one month. All patients
will receive 150 mg of Amigal every other day during the
duration of the study.
Phase II Study 204.
Six patients have
been treated in this study and additional patients are in
screening. Enrollment is complete and the study is expected to
be finished by the end of 2007. The study consists of treatment
with Amigal for a period of 12 weeks with a possible
extension to 48 weeks in female Fabry disease patients that
are naïve to enzyme replacement therapy or have not had
enzyme replacement therapy for at least one month. Patients will
receive 50 mg, 150 mg or 250 mg doses of Amigal
every other day for 12 weeks. If the patient participates
in the extension phase, the dose during the extension will be
determined based on data from the first 12 weeks.
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The eleven patients represent ten different genetic mutations.
The eleven patients consist of ten males and one female.
The eleven patients have baseline levels of α-GAL enzyme
activity in white blood cells that range from 0% to 30% of
normal.
Patients have been treated with various doses and regimens of
Amigal for various periods of time in accordance with relevant
protocols of our Phase II clinical trials.
An increase in the level of α-GAL in white blood cells was
observed in ten out of eleven patients.
The results suggest a dose dependence particularly in several
patients in Study 201, which included ascending doses
through Week 6 and then a significantly decreased dose
thereafter.
We believe the α-GAL responses observed are likely to be
therapeutically meaningful because it is generally believed that
even small increases in lysosomal enzyme levels may have
clinical benefits.
We believe that these results provide the first evidence in
patients of an effect of an orally administered pharmacological
chaperone on its intended protein target.
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A decrease in GL-3 of at least 1 unit was observed in the
kidney of one patient in Study 204 after 12 weeks of
treatment in mesangial cells and the cells of the glomerular
endothelium and distal tubules.
One patient in Study 203 also showed a decrease of GL-3
levels in these same kidney cell types. In this patient, some of
the scores were zero after treatment, but the decreases cannot
be considered conclusive on their own because they involved a
change of less than 1 full unit due to the lower levels of
GL-3 observed at baseline.
Both patients showed a decrease of GL-3 levels in other kidney
cell types including cells of the interstitial capillaries, but
the decreases were less than 1 unit and, thus, even though
the post-treatment GL-3 score was zero, cannot be considered
independently conclusive.
One patient in Study 202 showed an increase in GL-3 levels
in some cell types of the kidney and no change or a decrease in
others after 12 weeks of treatment. Of the eleven patients
who have completed at least twelve weeks of treatment to date in
our ongoing clinical trials, this is the one patient who did not
show an increase in the level of α-GAL in white blood cells
after treatment with Amigal.
Some kidney cell types such as podocyte cells did not show signs
of GL-3 reduction.
Results are presented as determined by electron microscopy,
however light and electron microscopy values were generally
consistent with one another.
We believe that these data are the first evidence in patients of
treatment with a pharmacological chaperone resulting in an
effect on the biological activity of the intended protein target.
66
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67
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Type I Chronic Nonneuronopathic Gaucher
Disease.
Type I Gaucher disease is the most
common subtype affecting more than 90% of patients and symptoms
usually first appear in adulthood. Type I Gaucher disease is
characterized by the occurrence of an enlarged spleen and liver,
anemia, low platelet counts and fractures and bone pain.
Patients with Type I Gaucher disease do not experience the
neurological features associated with Types II and III
Gaucher disease. The clinical severity of Type I Gaucher disease
is extremely variable with some patients experiencing the full
range of symptoms, while others are asymptomatic throughout most
of their lives.
Type II Acute Neuronopathic Gaucher
Disease.
Type II Gaucher disease symptoms
typically appear in infancy with an average age of onset of
about three months. Type II Gaucher disease involves rapid
neurodegeneration with extensive visceral involvement that
usually results in death before two years of age, typically due
to respiratory complications. The clinical presentation in
Type II Gaucher disease is typically more uniform than Type
I Gaucher disease.
Type III Subacute Neuronopathic Gaucher
Disease.
Type III Gaucher disease symptoms
typically first appear in infancy or early childhood and involve
some neurological symptoms, along with visceral and bone
complications. Age of onset and disease severity can vary
widely. Disease progression in Type III Gaucher disease is
typically slower than in Type II Gaucher disease.
68
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69
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We have crystallized GCase both alone and with Plicera. These
structural data demonstrate that Plicera binds directly to the
active site of GCase. See Figure 4 below.
In vitro exposure to Plicera increased transport of GCase to the
lysosome in cells derived from a patient with the N370S
mutation. Once in the lysosome, the enzyme was stable and active
for more than 3 days after Plicera was removed. The N370S is the
most common mutation associated with Gaucher disease in the
western world.
Oral administration of Plicera to both normal mice and mice
expressing the L444P mutation resulted in a dose-dependent
increase in GCase levels in the liver, spleen, brain and lungs.
The L444P is one of the most common mutations associated with
Gaucher disease.
Oral administration of Plicera to L444P mice resulted in
decreased spleen and liver weights and reduced plasma IgG and
chitin III levels, which are biomarkers related to Gaucher
disease.
Oral administration of Plicera resulted in increased GCase
levels in cells from hard bone and bone marrow in mice.
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Plicera increased GCase levels in cells derived from 32 of
34 patients (94%).
Plicera increased GCase levels in cells derived from 28 of
29 patients (97%) with an N370S mutation and from 4 of
5 patients with mutations other than N370S.
Single-Dose Phase I Trial.
Our
single-dose Phase I trial was a single center, randomized,
dose ranging study in healthy volunteers. The clinical phase
began in June 2006 and was completed in September 2006. The
study consisted of a total of 48 healthy volunteers divided into
six groups of eight subjects. Six subjects in each group
received oral administration of Plicera and two subjects
received placebo. All subjects received single doses of placebo
or 8 mg, 25 mg, 75 mg, 150 mg, 150 mg
(repeat) or 300 mg of Plicera and were evaluated on Days 1
to 3 and on Day 7. The objectives of the study were to evaluate
the safety and pharmacokinetics of Plicera in healthy volunteers.
Multiple-Dose Phase I Trial.
Our
multiple-dose Phase I trial was a single center,
randomized, dose ranging study in healthy volunteers. The
clinical phase began in August 2006 and was completed in October
2006. The study consisted of a total of 24 healthy volunteers
divided into three groups of eight subjects. Six subjects in
each group received oral administration of Plicera and two
subjects received placebo. All subjects received placebo or
25 mg, 75 mg or 225 mg of Plicera once a day for
seven days. Subjects were evaluated on Days 1 to 7 and
Days 9, 14 and 21. The objectives of the study were to
evaluate the safety and pharmacokinetics of Plicera in healthy
volunteers and to measure the level of GCase enzyme levels in
white blood cells of healthy volunteers who received Plicera.
71
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72
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Phase II Study 201.
We are conducting a
Phase II trial in which we are seeking to enroll
32 patients with Type I Gaucher disease who are currently
receiving enzyme replacement therapy and have agreed to
discontinue their enzyme replacement therapy for a total of
7 weeks. The study is designed to assess the safety and
pharmacodynamic effects of Plicera, particularly its effect on
GCase levels. We will also monitor the effect of Plicera on
parameters that are commonly abnormal in Gaucher disease
including levels of red blood cells and platelets, although we
do not expect to observe a change in these parameters in this
4-week
trial
because of its short duration. Patients will be assigned to one
of four treatment arms and will receive Plicera for
4 weeks. Patients will receive 25 mg once per day,
150 mg once per day, 150 mg every four days, or
150 mg every seven days.
Phase II Study 202.
We are conducting a
Phase II trial in which we are seeking to enroll
16 patients with Type I Gaucher disease who are naïve
to enzyme replacement therapy and substrate reduction therapy.
The study is designed to evaluate the safety of Plicera and its
effect on parameters that are commonly abnormal in Gaucher
disease including levels of red blood cells, platelets, liver
and spleen volumes and other biomarkers related to Gaucher
disease. Patients will be assigned to one of two treatment arms
and will receive treatment with Plicera for approximately
6 months. Patients will receive 150 mg every four days
or 150 mg every seven days.
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74
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AT2220 increased levels of the active, mature form of Gaa in
cells engineered to express different human Gaa missense
mutations and in cells derived from patients with Pompe disease.
Oral administration of AT2220 to normal mice resulted in an
approximately 5-fold increase in the level of Gaa activity in
most tissues examined, including heart, brain, diaphragm,
soleus, tongue, and gastocnemius muscle. This increase in Gaa
was assessed using a lysed cell enzyme activity assay and was
correlated with increased levels of the mature form of Gaa in
heart and gastrocnemius.
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Focus our initial efforts on developing pharmacological
chaperones for severe genetic diseases called lysosomal storage
disorders.
Our most advanced programs are for the
treatment of Fabry, Gaucher and Pompe disease. We identify the
compounds for these diseases using our proprietary approach. We
believe our pharmacological chaperone therapy may have
advantages over current therapies. We have focused initially on
lysosomal storage disorders for a number of reasons:
the therapeutic targets involved in these diseases are amenable
to rapid drug discovery and development using our
pharmacological chaperone technology;
the novel mechanism of action of our product candidates may
allow us to better address unmet medical needs in these very
debilitating diseases;
the severity of these diseases may permit smaller and more
expedited clinical studies; and
the specialized nature of these markets allows for small,
targeted sales and marketing efforts that we can pursue
independently.
Rapidly advance our lead programs.
We are
devoting a significant portion of our resources and business
efforts to completing the development of our most advanced
product candidates. We are currently conducting multiple
Phase II clinical trials of Amigal for the treatment of
Fabry disease. We expect to complete our current Phase II
trials for Amigal by the end of 2007. We completed Phase I
trials for Plicera in 2006 and are currently conducting
Phase II trials for the treatment of Gaucher disease. We
are currently conducting Phase I clinical trials of AT2220
for the treatment of Pompe disease. To accomplish these goals,
we are building an appropriate medical, clinical and regulatory
operations infrastructure. In addition, we are collaborating
with physicians, patient advocacy groups, foundations and
government agencies in order to assist with the development of
our products. We plan to pursue similar activities in future
programs.
Leverage our proprietary approach to the discovery and
development of additional small molecules.
We are
focused on the discovery and development of small molecules
designed to exert therapeutic effects by acting as
pharmacological chaperones. We have steadily advanced these
proprietary technologies and built an intellectual property
position protecting our discoveries over a number of years. Our
technologies span the disciplines of biology, chemistry and
pharmacology. We believe our technology is broadly applicable to
other diseases for which protein stabilization and improved
folding may be beneficial, including certain types of
neurological disease, metabolic disease, cardiovascular disease
and cancer. We are also exploring other applications in which
the ability of pharmacological chaperones to increase the
activity of normal proteins may provide a therapeutic benefit.
We plan to continue to apply our technologies to the discovery
and development of treatments for genetic diseases as well as
other conditions.
Build a targeted sales and marketing
infrastructure.
We plan to establish our own
sales and marketing capabilities in the U.S. and potentially in
other major markets. We believe that because our current
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clinical pipeline is focused on relatively rare genetic
disorders, we will be able to access the market through a
focused, targeted sales force. For example, for Amigal and
Plicera, we believe that the clinical geneticists who are the
key specialists in treating Fabry and Gaucher disease are
sufficiently concentrated that we will be able to effectively
promote the product with our own targeted sales force.
We have an exclusive license to five U.S. patents and three
pending U.S. applications that cover use of Amigal, as well
as corresponding foreign applications. U.S. patents
relating to Amigal expire in 2018, while the foreign counterpart
patents, if granted, would expire in 2019. The patents and the
pending applications include claims covering methods of
increasing the activity of and preventing the degradation of
α-GAL, and methods for the treatment of Fabry disease using
Amigal and other specific competitive inhibitors of
α-GAL.
In addition, we own a pending U.S. application directed to
specific treatment and monitoring regimens with Amigal and a
pending U.S. application directed to dosing regimens with
Amigal, which, if granted, may result in patents that expire in
2028; three pending U.S. applications directed to synthetic
steps related to the commercial process for preparing Amigal,
which may result in patents that expire in 2026; and two pending
U.S. applications for diagnosis of Fabry patients that will
respond to treatment with Amigal, which, if granted, will expire
in 2027. We have filed, or plan to file, foreign counterparts of
these applications, where appropriate, by the applicable
deadlines.
We have an exclusive license to seven U.S. patents and two
pending U.S. applications, and five foreign patents and a
pending foreign application, that cover Plicera or its use. Two
of the U.S. patents relating to Plicera compositions of
matter expire in 2015 and 2016; the five composition of matter
foreign patents and one pending foreign application, if granted,
expire in 2015. The other five U.S. patents and two pending
applications, which claim methods of increasing the activity of
and preventing the
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degradation of GCase, and methods for the treatment of Gaucher
disease using Plicera and other specific competitive inhibitors
of GCase, expire in 2018. We own two pending U.S. applications
directed to the particular form of the active agent in Plicera,
which, if granted, will expire in 2027. Lastly, we own one
pending application directed to dosing regimens for Plicera,
which if granted, will expire in 2028. We have filed, or plan to
file, foreign counterparts of these applications, where
appropriate, by the applicable deadlines.
We have an exclusive license to three U.S. patents that
cover use of AT2220, two pending U.S. applications, as well
as corresponding foreign applications. The U.S. patents
relating to AT2220 expire in 2018, while the foreign counterpart
patents, if granted, would expire in 2019. The patents and the
pending applications include claims covering methods of
increasing the activity of and preventing the degradation of
Gaa, and methods for the treatment of Pompe disease using AT2220
and other specific competitive inhibitors of Gaa.
the longer of 17 years from the issue date or 20 years
from the earliest effective filing date, if the patent
application was filed prior to June 8, 1995; and
20 years from the earliest effective filing date, if the
patent application was filed on or after June 8, 1995.
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Mt. Sinai School of Medicine
We have
acquired exclusive worldwide patent rights to develop and
commercialize Amigal, Plicera and AT2220 and other
pharmacological chaperones for the prevention or treatment of
human diseases or clinical conditions by increasing the activity
of wild-type and mutant enzymes pursuant to a license agreement
with Mt. Sinai School of Medicine of New York University. Under
this agreement, to date we have paid no upfront or annual
license fees and we have no milestone or future payments other
than royalties on net sales. In connection with this agreement,
we issued 1,742,000 shares of our common stock to Mt. Sinai
School of Medicine in April 2002. In October 2006 we issued Mt.
Sinai School of Medicine an additional 1,000,000 shares of
common stock and made a payment of $1,000,000 in consideration
of an expanded field of use under that license. This agreement
expires upon expiration of the last of the licensed patent
rights, which will be in 2019 if a foreign patent is granted and
2018 otherwise, or later subject to any patent term extension
that may be granted.
University of Maryland, Baltimore County
We
have acquired exclusive U.S. patent rights to develop and
commercialize Plicera for the treatment of Gaucher disease from
the University of Maryland, Baltimore County. Under this
agreement, to date we have paid aggregate upfront and annual
license fees of $29,500. We are required to make a milestone
payment upon the demonstration of safety and efficacy of Plicera
for the treatment of Gaucher disease in a Phase II study,
and another payment upon receiving FDA approval for Plicera for
the treatment of Gaucher disease. We are also required to pay
royalties on net sales. Upon satisfaction of both milestones, we
could be required to make up to $175,000 in aggregate payments.
This agreement expires upon expiration of the last of the
licensed patent rights in 2015.
Novo Nordisk A/S
We have acquired exclusive
patent rights to develop and commercialize Plicera for all human
indications. Under this agreement, to date we have paid an
aggregate of $400,000 in license fees. We are also required to
make milestone payments based on clinical progress of Plicera,
with a payment due after initiation of a Phase III clinical
trial for Plicera for the treatment of Gaucher disease, and a
payment due upon each filing for regulatory approval of Plicera
for the treatment of Gaucher disease in any of the United
States, Europe or Japan. An additional payment is due upon
approval of Plicera for the treatment of Gaucher disease in the
United States and a payment is also due upon each approval of
Plicera for the treatment of Gaucher disease in either of Europe
or Japan. Assuming successful development of Plicera for the
treatment of Gaucher disease in the United States, Europe and
Japan, total milestone payments would be $7,750,000. We are also
required to pay royalties on net sales. This license will
terminate in 2016.
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Indication
Product
Class of Product
Status
2006 Sales
(in millions)
Fabry disease
Fabrazyme
Enzyme Replacement Therapy
Marketed
$
359
Gaucher disease
Cerezyme
Enzyme Replacement Therapy
Marketed
$
1,007
Pompe disease
Myozyme
Enzyme Replacement Therapy
Marketed
$
59
Gaucher disease
Genz-112638
Substrate Reduction Therapy
Phase II
N/A
Fabry disease
Replagal
Enzyme Replacement Therapy
Marketed
$
118
Gaucher disease
GA-GCB
Enzyme Replacement Therapy
Phase III
N/A
Gaucher disease
Zavesca
Substrate Reduction Therapy
Marketed
$
20
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our research and development programs;
the design, implementation of basic science and mechanistic
studies;
the design, implementation and interpretation of animal model
studies;
market opportunities from a clinical perspective;
new ideas, science and technologies relevant to our research and
development programs; and
scientific, technical and medical issues relevant to our
business.
Professor and Director, University
Research Group on Drug Discovery, Department of Biochemistry,
Institute for Research in Immunology and Cancer, Faculty of
Medicine, Université de Montréal; Canada Research
Chair in Signal Transduction and Molecular Pharmacology
Director, UF Powell Gene
Therapy Center; Professor, Molecular Genetics &
Microbiology; Associate chair of Pediatrics, Department of
Pediatrics/Powell Gene Therapy Center
Professor of Genetics and
Pediatrics, Yale University School of Medicine; Investigator,
Howard Hughes Medical Institute
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Professor, Department of Medicine,
Hematology Division; Professor, Department of Biochemistry &
Molecular Biophysics, Washington University Medical School
Gyula and Katica Tauber Professor,
Department of Biochemistry and Department of Chemistry and
Director, Rosenstiel Basic Medical Sciences Research Center,
Brandeis University; Adjunct Professor, Department of Neurology
and Center for Neurologic Diseases, Harvard Medical School
our research and clinical development programs;
the design and implementation of our clinical studies;
market opportunities from a medical perspective;
leading medical understanding of lysosomal diseases; and
current therapeutic paradigms in our target medical areas.
Assistant Professor, Department of
Genetics; Director, Centre de référence de la
maladie de Fabry et des maladies héréditaires du tissu
conjonctif, Assistance Publique, Hopitaux de Paris, Paris,
France
Professor and Chief, Section of
Pediatric Hepatology and Gastroenterology, Yale University
School of Medicine; Director, National Gaucher Disease Program;
Director, Inherited Metabolic Liver Disease Clinic, Yale
University School of Medicine
Professor of Clinical Neurology
and Pediatrics and Director, Division of Pediatric Neurology,
Departments of Neurology and Pediatrics, College of
Physicians & Surgeons of Columbia University; Director
of Pediatric Neurology and Child Neurology Training Program
Director, Morgan Stanley Childrens Hospital of New
York-Presbyterian Columbia University Medical Center
Medical and Scientific Director,
Institut de Myologic,
Groupe Hospitalier Pitié-Salpétrière; Assistant
Professor, University Pierre et Marie Curie Paris VI,
Paris, France
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111
F-17
F-33
F-34
F-35
II-5
40
President and Chief Executive
Officer and Director
35
Chief Operating Officer
40
Chief Financial Officer
45
Chief Scientific Officer
53
Senior Vice President, Drug
Development
45
Senior Vice President, Clinical
Research
45
Senior Vice President, Business
Development
50
Vice President, General Counsel
and Secretary
42
Vice President, Medical Affairs
38
Vice President, Human Resources
and Leadership Development
51
Chairman and Director
59
Director
42
Director
50
Director
45
Director
44
Director
36
Director
55
Director
(1)
Member of Compensation Committee.
(2)
Member of Audit Committee.
(3)
Member of Nominating/Corporate
Governance Committee.
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the class I directors will
be , and ,
and their term will expire at the annual meeting of stockholders
to be held in 2008;
the class II directors will
be , and ,
and their term will expire at the annual meeting of stockholders
to be held in 2009; and
the class III directors will
be , and ,
and their term will expire at the annual meeting of stockholders
to be held in 2010.
appointing, approving the compensation of, and assessing the
independence of our independent registered public accounting
firm;
overseeing the work of our independent registered public
accounting firm, including through the receipt and consideration
of certain reports from our independent registered public
accounting firm;
reviewing and discussing with management and the independent
registered public accounting firm our annual and quarterly
financial statements and related disclosures;
monitoring our internal control over financial reporting,
disclosure controls and procedures and code of business conduct
and ethics;
establishing policies regarding hiring employees from our
independent registered public accounting firm and procedures for
the receipt and retention of accounting related complaints and
concerns;
meeting independently with our independent registered public
accounting firm and management; and
preparing the audit committee report required by Securities and
Exchange Commission rules.
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reviewing and approving, or making recommendations to our board
of directors with respect to, the compensation of our chief
executive officer and our other executive officers;
overseeing the evaluation of performance of our senior
executives;
overseeing and administering, and making recommendations to our
board of directors with respect to, our cash and equity
incentive plans;
reviewing and approving potential executive and senior
management succession plans; and
reviewing and approving non-routine employment agreements,
severance agreements and change in control agreements.
recommending to our board of directors the persons to be
nominated for election as directors and to each of the board of
directors committees;
conducting searches for appropriate directors;
reviewing the size, composition and structure of our board of
directors;
developing and recommending to our board of directors corporate
governance principles;
overseeing a periodic self-evaluation of our board of directors
and any board committees; and
overseeing compensation and benefits for directors and board
committee members.
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Attract and retain individuals of superior ability and
managerial talent;
Ensure senior officer compensation is aligned with our corporate
strategies, business objectives and the long-term interests of
our stockholders;
Increase the incentive to achieve key strategic and financial
performance measures by linking incentive award opportunities to
the achievement of performance goals in these areas; and
Enhance the officers incentive to maximize stockholder
value, as well as promote retention of key people, by providing
a portion of total compensation opportunities for senior
management in the form of direct ownership in our company.
clinical trial progress;
pre-clinical drug development;
continued intellectual property development; and
implementation of appropriate financing or business development
strategies.
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Targeted Bonus %
of Base Salary
50
%
30
%
25
%
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Stock options and the vesting period of stock options attract
and retain executives.
Stock options are inherently performance based. Because all the
value received by the recipient of a stock option is based on
the growth of the stock price, stock options enhance the
executives incentive to increase our stock price and
maximize stockholder value.
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Stock options help to provide a balance to the overall executive
compensation program as base salary and our annual performance
bonus program focus on short-term compensation, while stock
options reward executives for increases in shareholder value
over the longer term.
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Stock
Option
All Other
Name and
Salary
Bonus
(1)
Awards
Awards
(2)
Compensation
Total
Year
($)
($)
($)
($)
($)
($)
2006
$
400,000
$
210,667
$
2,597,512
$
659,963
(3)
$
3,868,142
2006
145,705
(5)
30,000
(6)
691,117
(7)
866,852
2006
70,000
(8)
84,000
366,000
180,134
299,461
(9)
999,595
2006
110,000
40,450
86,828
237,278
2006
48,094
124,887
172,981
2006
280,673
65,267
309,228
655,168
2006
280,000
66,547
1,236,910
94,926
(12)
1,678,383
2006
236,250
40,163
24,738
301,151
2006
281,875
70,469
185,536
191,255
(14)
729,135
(1)
Represents bonuses earned in 2006
and paid in 2007.
(2)
The value of each of the option
awards was computed in accordance with FAS 123(R) for 2006.
Valuation assumptions are described in the notes to financial
statements appearing elsewhere in this prospectus. Options
generally vest over a four year period.
(3)
Includes $214,440 of payments made
in connection with executive medical reimbursement, $256,620 for
health insurance premiums for Mr. Crowleys family and
$188,903 for reimbursement of taxes.
(4)
Mr. Hayden served as interim
president and chief executive officer from September 11,
2006, until March 5, 2007.
(5)
This amount includes all
compensation paid to Mr. Hayden in 2006 and consists of
$61,538 for his service as interim president and chief executive
officer from September 11, 2006 until March 5, 2007,
$25,000 for consulting services provided to us by him from
February 28, 2006 to June 27, 2006, and $59,167 for
his service as the chairman of the board of directors.
(6)
This bonus amount was awarded to
Mr. Hayden solely for his service to us as our interim
president and chief executive officer.
(7)
This amount is the value of the
100,000 common stock options granted to Mr. Hayden for his
service as our interim president and chief executive officer, as
well as the 500,000 common stock options granted to him in
February 2006 for his service to us as the chairman of the board
of directors.
(8)
Mr. Dentzer began serving as
our chief financial officer in October 2006.
(9)
Consists of $199,461 of relocation
expenses and a $100,000 signing bonus.
(10)
Mr. McAdam has served as our
Controller since March 2006. He also served as our Interim
Principal Accounting and Principal Financial Officer from March
2006 to September 2006.
(11)
Mr. Waruszs employment
with us ended in March 2006. Other compensation consists of
severance and salary continuance payments made to him during
2006 in connection with his departure.
(12)
Includes $20,000 of signing bonus,
$31,579 of relocation expenses, $25,550 for commuting expenses,
and $17,797 for reimbursement of taxes.
(13)
Dr. Huertas employment
with us ended on December 31, 2006.
(14)
Other compensation consists of
$140,938 for accrued severance, $37,183 for relocation expenses,
and $13,134 for commuting expenses relating to
Dr. Huertas service with the Company through the end
of 2006.
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Performance-
Based Stock
All Other
Incentive
Option
Exercise
Grant
Plans:
Awards:
or Base
Date Fair
Number of
Number of
Price of
Value of
Restricted
Securities
Option or
Stock and
Stock
Underlying
Stock
Option
Name and
Awards
Options
Awards
Awards
(1)
Grant Date
(#)
(#)
($/Sh)
($)
2/28/2006
2,100,000
(2)
$
0.71
$
2,597,512
Executive Officer
2/28/2006
500,000
(3)
0.71
618,455
9/13/2006
100,000
(4)
1.09
72,661
Executive Officer
10/2/2006
250,000
(2)
1.22
180,134
10/2/2006
300,000
(5)
1.22
366,000
2/28/06
15,000
(2)
0.71
18,541
3/27/06
50,000
0.71
61,859
5/15/06
10,000
1.09
6,428
2/28/2006
250,000
(2)
0.71
309,228
2/28/2006
750,000
(2)
0.71
927,683
2/28/2006
250,000
0.71
309,228
2/28/2006
20,000
(2)
0.71
24,738
2/28/2006
150,000
(2)
0.71
185,537
(1)
The value of restricted stock and
option awards granted to our named executive officers was
computed in accordance with FAS 123(R). Valuation
assumptions are described in the notes to financial statements
appearing elsewhere in this prospectus.
(2)
The option has a term of ten years
and vests in accordance with the following schedule: 25% of the
total number of shares vest on the first anniversary of the
Grant Date and 1/48th of the total number of shares vest on the
first day of each calendar month following the grant date.
(3)
The option to purchase
500,000 shares of common stock granted to Mr. Hayden
was for his service as a director of the company, has a term of
ten years and vests in accordance with the following schedule:
25% of the total number of shares vest on the first anniversary
of the Grant Date and 1/48th of the total number of shares vest
on the first day of each calendar month following the grant date.
(4)
The option to purchase
100,000 shares of common stock granted to Mr. Hayden
was for his service as our interim president and chief executive
officer and vested entirely on completion of his service under
his Employment Agreement on March 5, 2007.
(5)
The award of 300,000 shares of
restricted stock granted to Mr. Dentzer vests in accordance
with the following schedule: 25% of the total number of shares
vest on the first anniversary of the grant date and 1/48th of
the total number of shares vest on the first day of each
calendar month following the grant date.
(6)
Mr. Waruszs employment
with us ended in March 2006.
(7)
Mr. Huertas employment
with us ended on December 31, 2006.
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Option Awards
Stock Awards
Market
Number
Value of
Number of
Number of
of Shares
Shares or
Securities
Securities
or Units
Units of
Underlying
Underlying
of Stock
Stock
Unexercised
Unexercised
Option
That Have
That Have
Options
Options
Exercise
Option
Not
Not
(#)
(#)
Price
Expiration
Vested
Vested
Exercisable
Unexercisable
($)
Date
(#)
($)
477,543
1,171,230
(1)
$
0.085
1/6/2015
54,960
68,712
(1)
0.085
8/17/2014
218,750
531,250
(1)
0.71
10/20/2015
2,100,000
(1)
0.71
2/28/2016
500,000
(1)
0.71
2/28/2016
100,000
(2)
1.09
9/13/2016
250,000
(1)
1.09
10/2/2016
300,000
(5)
396,000
15,000
(1)
0.71
2/28/2016
50,000
(1)
0.71
3/27/2016
10,000
(1)
1.09
5/15/2016
122,057
362,044
(1)
0.085
12/15/2014
80,208
194,792
(1)
0.71
10/20/2015
250,000
(1)
0.71
2/28/2016
750,000
(1)
0.71
2/28/2016
250,000
(1)
0.71
2/28/2016
10,000
(1)
0.01
8/12/2012
20,000
2,500
(1)
0.075
1/20/2014
60,566
143,856
(1)
0.085
12/15/2014
65,626
159,374
(1)
0.71
10/20/2015
20,000
0.71
2/28/2016
437,487
(1)
0.085
6/19/2015
81,250
(1)
0.71
10/20/2015
68,750
(1)
0.71
2/28/2016
(1)
25% of the total number of shares
subject to the option vest at the end of the first year, the
remainder vest 1/36th per month thereafter.
(2)
100% vested on March 5, 2007
due to the termination of his service as our interim president
and chief executive officer.
(3)
Mr. Waruszs employment
with us ended in March 2006.
(4)
Mr. Huertas employment
with us ended on December 31, 2006.
(5)
25% of the total number of shares
vest on the first anniversary of the grant date and
1
/
48
th
of the total number of shares vest on the first day of each
calendar month following the grant date.
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Option Awards
Stock Awards
Number of
Number of
Shares
Shares
Acquired on
Value Realized
Acquired on
Value Realized
Exercise
on
Exercise
(1)
Vesting
on Vesting
(#)
($)
(#)
($)
600,000
$
1,053,000
Chief Executive Officer
72,918
73,238
240,000
241,200
366,495
376,577
(1)
Value Realized on Exercise is the
difference between the aggregate exercise price and the
aggregate fair value or retrospectively determined fair value
for financial reporting purposes at the date of exercise. Our
methodology for determining fair value and retrospectively
determined fair value for reporting purposes is described in
Managements Discussion and Analysis of Financial Condition
and Results of Operation.
(2)
Mr. Waruszs employment
with us ended in March 2006.
(3)
Mr. Huertas employment
with us ended on December 31, 2006.
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a lump-sum severance payment in an amount equal to 12 times his
or her monthly base salary in effect as of the date of the
corporate change;
payment of a bonus equal to the bonus earned in the preceding
year; and
any outstanding unvested stock options or other equity based
compensation held by the executive will fully vest.
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Salary
Benefit
Value of Accelerated
Continuation
Bonus
Continuation
Option Vesting
($)
($)
($)
($)
$
600,000
$
300,000
$
940,230
(1)
$
1,446,724
33,333
23,000
140,000
150,000
62,500
185,494
140,000
203,333
118,125
140,000
70,469
288,378
(1)
Benefits to be continued consist of
healthcare costs and health insurance premiums for
Mr. Crowleys family.
(2)
Mr. Waruszs employment
with us ended in March 2006.
(3)
Dr. Huertas employment
with us ended on December 31, 2006.
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Value of
Accelerated
Salary
Benefit
Equity
Continuation
Bonus
Continuation
Vesting
($)
($)
($)
($)
$
800,000
$
400,000
$
1,253,640
(1)
$
3,136,391
280,000
421,000
300,000
62,500
722,896
20,000
610,000
23,250
56,250
318,193
(1)
Benefits to be continued consist of
healthcare costs and health insurance premiums for
Mr. Crowleys family.
(2)
Mr. Waruszs employment
with us ended in March 2006.
(3)
Mr. Huertas employment
with us ended on December 31, 2006.
$45,000 per year for service as chairman;
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$20,000 per year for service as a board member;
$30,000 per year for service as chairperson of the audit
committee;
$30,000 for service as a financial expert;
$20,000 per year each for service as chairperson of the
compensation committee or the nominating/corporate governance
committee; and
$10,000 per year for service as a member of the audit committee
and $5,000 per year for service as a member of the compensation
committee or the nominating/corporate governance committee.
Fees Earned
Non-Incentive
or Paid
Stock
Option
Plan
All Other
Total
in
Cash
(1)
Awards
(2)
Awards
Compensation
Compensation
($)
($)
($)
($)
($)
($)
$
149,000
$
40,000
$
109,000
6,250
6,250
8,750
8,750
6,250
6,250
7,500
7,500
6,250
6,250
10,000
10,000
(1)
Represents fees paid pursuant to
Director Compensation Policy.
(2)
The restricted stock award vests in
36 equal monthly installments.
(3)
Commencing in November 2006,
declined to accept any fees until we completed an initial public
offering.
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for any breach of their duty of loyalty to us or our
stockholders;
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
for voting or assenting to unlawful payments of dividends or
other distributions; or
for any transaction from which the director derived an improper
personal benefit.
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each of our directors;
each of our executive officers;
each person, or group of affiliated persons, who is known by us
to beneficially own more than 5% of our common stock; and
all of our directors and executive officers as a group.
Percentage of Shares
Beneficially Owned
Number of Shares
Before
After
Beneficially Owned
Offering
Offering
33,675,105
26.1
%
Baltimore, MD 21202
19,500,149
15.1
%
Seattle, WA 98101
16,853,874
13.0
%
Palo Alto, CA 94301
15,814,213
12.2
%
Stamford, CT 06901
15,426,180
11.9
%
Westport, CT 06880
10,648,236
8.2
%
2929 Arch Street
110
Table of Contents
Percentage of Shares
Beneficially Owned
Number of Shares
Before
After
Beneficially Owned
Offering
Offering
2,487,937
1.9
%
605,826
*
650,487
*
497,914
*
-0-
*
189,863
*
348,957
*
166,668
*
-0-
*
99,988
*
607,487
*
72,918
*
23,023
*
266,672
*
16,853,874
13.0
%
33,675,105
26.1
%
19,500,149
15.1
%
30,558
*
15,426,180
11.9
%
15,814,213
12.2
%
10,648,236
8.2
%
117,966,368
88.3
%
*
Represents beneficial ownership of
less than one percent of our outstanding common stock.
(1)
Consists of 27,491,777 shares
held of record by New Enterprise Associates 11, Limited
Partnership including 113,083 shares assuming the exercise
for cash of outstanding warrants held by New Enterprise
Associates 11, Limited Partnership, 20,304 shares held of
record by NEA Ventures 2004, Limited Partnership including
304 shares assuming the exercise for cash of outstanding
warrants held by NEA Ventures 2004, Limited Partnership, and
6,163,024 shares held of record by New Enterprise
Associates 9, Limited Partnership. Voting and investment power
over the shares held by NEA Ventures 2004, Limited Partnership
is exercised by J. Daniel Moore, its general partner. Voting and
investment power over the shares held by New Enterprise
Associates 9, Limited Partnership is exercised by NEA Partners
9, Limited Partnership, its general partner. The individual
general partners of NEA Partners 9, Limited Partnership are C.
Richard Kramlich, Peter J. Barris, Charles W. Newhall, III, Mark
W. Perry and John M. Nehra. Voting and investment power over the
shares held by New Enterprise Associates 11, Limited Partnership
is exercised by NEA Partners 11, Limited Partnership, its
general partner. The general partner of NEA Partners 11, Limited
Partnership is NEA 11 GP, LLC. The individual managers of NEA 11
GP, LLC are C. Richard Kramlich, Peter J. Barris, Charles W.
Newhall, III, Mark W. Perry, Scott D. Sandell, Eugene A.
Trainor, III, Charles M. Linehan, Ryan D. Drant, Krishna
Kittu Kolluri and M. James Barrett. Mr. Raab is
a partner of New Enterprise Associates but does not have voting
or dispositive power with respect to the shares held by New
Enterprise Associates 9, Limited Partnership or NEA Ventures
2004, Limited Partnership and he disclaims beneficial ownership
of shares held by New Enterprise Associates 11, Limited
Partnership, except to the to the extent of his pecuniary
interest therein. Mr. Raab has no pecuniary interest in the
shares held by NEA Ventures 2004, Limited Partnership.
(2)
Consists of 19,401,662 shares
held of record by Frazier Healthcare IV, L.P. including
112,815 shares assuming the exercise for cash of
outstanding warrants held by Frazier Healthcare IV, L.P. and
98,487 shares held of record by Frazier Affiliates IV, L.P.
including 573 shares assuming the exercise for cash of
outstanding warrants held by Frazier Affiliates IV, L.P.
Dr. Topper, a member of our board of directors, holds the
title of General Partner with Frazier Healthcare Ventures. In
that capacity he shares voting and investment power for the
shares held by both Frazier Healthcare IV, L.P. and Frazier
Affiliates IV, L.P. Dr. Topper disclaims beneficial
Table of Contents
ownership of the shares held by
entities affiliated with Frazier Healthcare Ventures, except to
the extent of any pecuniary interest therein.
(3)
Consists of 16,601,065 shares
held of record by Prospect Venture Partners II, L.P. including
111,687 shares assuming the exercise for cash of
outstanding warrants held by Prospect Venture Partners II, L.P.,
and 252,809 shares held of record by Prospect Associates
II, L.P. including 1,701 shares assuming the exercise for
cash of outstanding warrants held by Prospect Associates II,
L.P. Dr. Barkas, a member of our board of directors and a
Managing Member of the General Partner of both Prospect Venture
Partners II, L.P. and Prospect Associates II, L.P., disclaims
beneficial ownership of the shares held by entities affiliated
with Prospect Venture Partners II, L.P. except, to the extent of
any pecuniary interest therein.
(4)
Consists of 14,815,939 shares
held of record by CHL Medical Partners II, L.P. and
998,274 shares held of record by CHL Medical Partners II
Side Fund, L.P. Voting and investment power over the shares held
by each of the partnerships constituting CHL Medical Partners is
exercised by Collinson Howe & Lennox II, L.L.C. in
its role as general partner and investment advisor to the
partnerships. The members of Collinson Howe &
Lennox II, L.L.C. are Jeffrey J. Collinson,
Myles D. Greenberg, Timothy F. Howe, Ronald W.
Lennox, and Gregory M. Weinhoff, a member of our board of
directors. Each of these members disclaims beneficial ownership
of these shares except to the extent of his proportionate
pecuniary interest therein.
(5)
Consists of 14,870,840 shares
held of record by Canaan Equity III, L.P. including
102,518 shares assuming the exercise for cash of
outstanding warrants held by Canaan Equity III, L.P. and
555,340 shares held of record by Canaan Equity III
Entrepreneurs, LLC including 3,828 shares assuming the
exercise for cash of outstanding warrants held by Canaan Equity
III Entrepreneurs, LLC. Canaan Equity Partners III, LLC, the
sole general partner of Canaan Equity III, L.P. and sole manager
of Canaan Equity III Entrepreneurs, LLC, has sole voting and
disposition power over these shares. The Managers of Canaan
Equity Partners, III, LLC are John V. Balen, Stephen L. Green,
Deepak Kamra, Gregory Kopchinsly, Seth A. Rudnick, Guy M. Russo
and Eric A. Young. Dr. Bloch, a member of our board of
directors, is a member of Canaan Equity Partners III, LLC.
Dr. Bloch does not have sole or shared voting or
disposition power over these shares.
(6)
Consists of 7,986,178 shares
held of record by Quaker BioVentures, L.P. and
2,662,058 shares held of record by Garden State Life
Sciences Venture Fund, L.P. Mr. Neff, a member of our board
of directors and a Member of the General Partner of both Quaker
BioVentures, L.P., and Garden State Life Sciences Venture Fund,
L.P. disclaims beneficial ownership of the shares held by
entities affiliated with Quaker BioVentures, except to the
extent of any pecuniary interest therein.
(7)
Consists of 1,387,937 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 1,100,000 shares
held of record. Includes 100,000 shares held of record by
MPAJ, LLC, for which Mr. Crowley has sole voting and
dispositive power, 450,000 shares held of record by Aileen
A. Crowley 2007 Grantor Retained Annuity Trust, and
550,000 shares held of record by John F. Crowley 2007
Grantor Retained Annuity Trust. Mr. Crowley is the sole trustee
of the John F. Crowley 2007 Grantor Retained Annuity Trust and
exercises voting and investment power over its shares.
Mr. Crowley disclaims beneficial ownership of the shares
held by the Aileen A. Crowley 2007 Grantor Retained Annuity
Trust.
(8)
Consists of 239,331 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 366,495 shares
held of record.
(9)
Consists of 410,487 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 240,000 shares
held of record.
(10)
Consists of 296,772 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 201,142 shares
held of record. Includes 50,000 shares held of record by
the Gregory P. Licholai 2006 Grantor Retained Annuity Trust, for
which Mr. Licholai has sole voting and dispositive power.
(11)
Consists of 93,894 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 95,969 shares held
of record.
(12)
Consists of 348,957 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(13)
Consists of 166,668 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(14)
Consists of 99,988 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(15)
Consists of 23,336 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(16)
Consists of 266,672 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(17)
Consists of 16,601,065 shares
held of record by Prospect Venture Partners II, L.P. including
111,687 shares assuming the exercise for cash of
outstanding warrants held by Prospect Venture Partners II, L.P.,
and 252,809 shares held of record by Prospect Associates
II, L.P. including 1,701 shares assuming the exercise for
cash of outstanding warrants held by Prospect Associates II,
L.P. Dr. Barkas, a member of our board of directors and a
Managing Member of the General Partner of both Prospect Venture
Partners II, L.P. and Prospect Associates II, L.P., disclaims
beneficial ownership of the shares held by entities affiliated
with Prospect Venture Partners II, L.P. except, to the extent of
any pecuniary interest therein.
(18)
Consists of 27,491,777 shares
held of record by New Enterprise Associates 11, Limited
Partnership including 113,083 shares assuming the exercise
for cash of outstanding warrants held by New Enterprise
Associates 11, Limited Partnership, 20,304 shares held of
record by NEA Ventures 2004, Limited Partnership including
304 shares assuming the exercise for cash of outstanding
warrants held by NEA Ventures 2004, Limited Partnership, and
6,163,024 shares held of record by New Enterprise
Associates 9, Limited Partnership. Mr. Raab is a partner of
New Enterprise Associates but does not have voting or
dispositive power with respect to the shares held by New
Enterprise Associates 9, Limited Partnership or NEA Ventures
2004, Limited Partnership and he disclaims beneficial ownership
of shares held by New Enterprise Associates 11, Limited
Partnership, except to the to the extent of his pecuniary
interest therein. Mr. Raab has no pecuniary interest in the
shares held by NEA Ventures 2004, Limited Partnership and New
Enterprise Associates 9, Limited Partnership.
112
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(19)
Consists of 19,401,662 shares
held of record by Frazier Healthcare IV, L.P. including
112,815 shares assuming the exercise for cash of
outstanding warrants held by Frazier Healthcare IV, L.P. and
98,487 shares held of record by Frazier Affiliates IV, L.P.
including 573 shares assuming the exercise for cash of
outstanding warrants held by Frazier Affiliates IV, L.P.
Dr. Topper, a member of our board of directors, holds the
title of General Partner with Frazier Healthcare Ventures. In
that capacity he shares voting and investment power for the
shares held by both Frazier Healthcare IV, L.P. and Frazier
Affiliates IV, L.P. Dr. Topper disclaims beneficial
ownership of the shares held by entities affiliated with Frazier
Healthcare Ventures, except to the extent of any pecuniary
interest therein.
(20)
Consists of 30,558 shares of
restricted stock which vest within 60 days of
April 25, 2007.
(21)
Dr. Bloch does not have sole
or shared voting or dispositive power over shares owned by
entities affiliated with Canaan Partners. Dr. Bloch
disclaims beneficial ownership of such shares, except to the
extent of his pecuniary interest therein. See footnote 5.
(22)
Consists of 14,815,939 shares
held of record by CHL Medical Partners II, L.P. and
998,274 shares held of record by CHL Medical Partners II
Side Fund, L.P. Dr. Weinhoff, a member of our board of
directors and a member of the general partner of both CHL
Medical Partners II, L.P. and CHL Medical Partners II Side Fund,
L.P., disclaims beneficial ownership of the shares held by
entities affiliated with CHL Medical Partners, except to the
extent of any pecuniary interest therein.
(23)
Consists of 7,986,178 shares
held of record by Quaker BioVentures, L.P. and
2,662,058 shares held of record by Garden State Life
Sciences Venture Fund, L.P. Mr. Neff, a member of our board
of directors and a Member of the General Partner of both Quaker
BioVentures, L.P. and Garden State Life Sciences Venture Fund,
L.P., disclaims beneficial ownership of the shares held by
entities affiliated with Quaker Bioventures, except to the
extent of any pecuniary interest therein.
(24)
Consists of 3,364,600 total
shares issuable upon the exercise of stock options exercisable
within 60 days of April 25, 2007, warrants to purchase
446,509 shares of Series B redeemable convertible
preferred stock and 114,155,259 total shares held of record.
113
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114
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Number of Shares of
Number of Shares of
Number of Shares of
Series B Redeemable
Series C Redeemable
Series D Redeemable
Convertible
Convertible
Convertible
Preferred Stock
Preferred Stock
Preferred Stock
7,564,370
7,621,664
1,667,840
7,564,369
7,621,664
18,489,072
7,564,368
7,621,664
4,314,117
7,094,582
6,806,250
1,525,348
5,971,870
3,968,254
1,540,756
7,936,506
2,711,730
35,759,559
41,576,002
30,248,863
(1)
Includes 113,467 shares of
series B redeemable convertible preferred stock (including
the automatic exercise of outstanding warrants to purchase
1,701 shares of series B redeemable convertible
preferred stock), 114,326 shares of series C
redeemable convertible preferred stock and 25,016 shares of
series D redeemable convertible preferred stock, in each
case issued to Prospect Associates II, L.P., and
7,450,903 shares of series B redeemable convertible
preferred stock (including the automatic exercise for cash of
outstanding warrants to purchase 111,687 shares of
series B redeemable convertible preferred stock),
7,507,338 shares of series C redeemable convertible
preferred stock and 1,642,824 shares of series D
redeemable convertible preferred stock issued to Prospect
Venture Partners II, L.P. Dr. Barkas, one of our directors,
is a Managing Member of the General Partner of both Prospect
Venture Partners II, L.P., and Prospect Associates II, L.P.
(2)
Includes 20,304 shares of
series B redeemable convertible preferred stock issued to
NEA Ventures 2004, Limited Partnership (including the automatic
exercise for cash of outstanding warrants to purchase
304 shares of series B redeemable convertible preferred
stock), 7,544,065 shares of series B redeemable
convertible preferred stock (including the automatic exercise
for cash of outstanding warrants to purchase 113,083 shares
of series B redeemable convertible preferred
stock),7,621,664 shares of series C redeemable
convertible preferred stock and 12,326,048 shares of
series D redeemable convertible preferred stock issued to
New Enterprise Associates 11, L.P., and 6,163,024 shares of
series D redeemable convertible preferred stock issued to
New Enterprise Associates 9, Limited Partnership. Mr. Raab,
one of our directors, is a partner of New Enterprise Associates.
(3)
Includes 38,205 shares of
series B redeemable convertible preferred stock (including
the automatic exercise for cash of outstanding warrants to
purchase 573 shares of series B redeemable convertible
preferred stock), 38,494 shares of series C redeemable
convertible preferred stock and 21,788 shares of
series D redeemable convertible preferred stock issued to
Frazier Affiliates IV, L.P., and 7,526,163 shares of
series B redeemable convertible preferred stock (including
the automatic exercise for cash of outstanding warrants to
purchase 112,815 shares of series B redeemable
convertible preferred stock), 7,583,170 shares of
series C redeemable convertible preferred stock and
4,292,329 shares of series D redeemable convertible
preferred stock issued to Frazier Healthcare IV, L.P.
Dr. Topper, one of our directors, holds the title of
General Partner with Frazier Healthcare Ventures.
(4)
Includes 6,839,178 shares of
series B redeemable convertible preferred stock (including
the automatic exercise for cash of outstanding warrants to
purchase 102,518 shares of series B redeemable
convertible preferred stock), 6,561,226 shares of
series C redeemable convertible preferred stock and
1,470,436 shares of series D redeemable convertible
preferred stock issued to Canaan Equity III, L.P., and
255,404 shares of series B redeemable convertible
preferred stock (including the automatic exercise for cash of
outstanding warrants to purchase 3,828 shares of
series B redeemable convertible preferred stock),
245,024 shares of series C redeemable convertible
preferred stock and 54,912 shares of series D
redeemable convertible preferred stock issued to Canaan Equity
III Entrepreneurs, LLC. Dr. Bloch, one of our directors, is
a Member of Canaan Equity Partners III, LLC, the sole general
partner of Canaan Equity III, L.P. and the sole manager of
Canaan Equity III Entrepreneurs, LLC.
115
Table of Contents
(5)
Includes 5,594,895 shares of
series B redeemable convertible preferred stock and
3,717,758 shares of series C redeemable convertible
preferred stock issued to CHL Medical Partners II, L.P. and
376,975 shares of series B redeemable convertible preferred
stock and 250,496 shares of series C redeemable
convertible preferred stock issued to CHL Medical Partners II
Side Fund, L.P. Dr. Weinhoff, one of our directors, is a
member of the general partner of both CHL Medical Partners II,
L.P. and CHL Medical Partners II Side Fund, L.P.
(6)
Includes 5,952,380 shares of
series C redeemable convertible preferred stock and
2,033,798 shares of series D redeemable convertible
preferred stock issued to Quaker BioVentures, L.P. and
1,984,126 shares of series C redeemable convertible
preferred stock and 677,932 shares of series D
redeemable convertible preferred stock issued to Garden State
Life Sciences Venture Fund, L.P. Mr. Neff, one of our
directors, is a member of the general partner of the general
partner of both Quaker BioVentures, L.P. and Garden State Life
Sciences Venture Fund, L.P.
Shares of
Series B
Redeemable
Convertible
Aggregate Principal
Preferred Stock
Amount of
Issued upon
Notes Held
Conversion
$
5,500,000
5,882,353
116
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117
Table of Contents
8,668,929 shares of common stock outstanding held by 40
stockholders of record;
3,333,334 shares of series A redeemable convertible
preferred stock that are convertible into 3,333,334 shares
of common stock;
36,578,011 shares of series B redeemable convertible
preferred stock that are convertible into 36,578,011 shares
of common stock;
43,650,262 shares of series C redeemable convertible
preferred stock that are convertible into 43,650,262 shares
of common stock; and
36,978,145 shares of series D redeemable convertible
preferred stock that are convertible into 36,978,145 shares
of common stock.
options to purchase 19,174,000 shares of common stock at a
weighted average exercise price of $1.01 per share;
warrants to purchase an aggregate of 447,583 shares of
series B redeemable convertible preferred stock at an
exercise price of $0.85 per share, which warrants are to be
automatically exercised for cash upon the closing of this
offering; and
a warrant to purchase 40,000 shares of common stock at an
exercise price of $0.75 per share.
118
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119
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120
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121
Table of Contents
1% of the number of shares of our common stock then outstanding,
which will equal
approximately shares
immediately after this offering, and
the average weekly trading volume in our common stock on The
NASDAQ Global Market during the four calendar weeks preceding
the date of filing of a Notice of Proposed Sale of Securities
Pursuant to Rule 144 with respect to the sale.
the person is not our affiliate and has not been our affiliate
at any time during the three months preceding the sale; and
the person has beneficially owned the shares proposed to be sold
for at least two years, including the holding period of any
prior owner other than our affiliates.
122
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123
Table of Contents
Number of
Shares
No
Full
Exercise
Exercise
$
$
$
$
124
Table of Contents
offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any
shares of common stock or any securities convertible into or
exercisable or exchangeable for common stock; or
enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences
of ownership of the common stock.
during the last 17 days of the
180-day
restricted period we issue an earnings release or material news
or a material event relating to our company occurs; or
prior to the expiration of the
180-day
restricted period, we announce that we will release earnings
results during the
16-day
period beginning on the last day of the
180-day
period,
the sale of shares to the underwriters;
the issuance by us of shares of common stock upon the exercise
of an option or a warrant or the conversion of a security
outstanding on the date of this prospectus of which the
underwriters have been advised in writing;
the grant of options or the issuance of shares of common stock
by us pursuant to equity incentive plans described in this
prospectus, provided that the recipient of the option or shares
agree to be subject to the restrictions described in this
paragraph;
the issuance by us of shares of common stock in connection with
any strategic transactions, such as collaboration or license
agreements, provided that the recipient of the shares agrees to
be subject to the restrictions described in this paragraph;
transactions by any person other than us relating to shares of
common stock or other securities acquired in open market
transactions after the completion of the offering of the shares;
transfers by any person other than us of shares of common stock
or other securities as a bona fide gift or in connection with
bona fide estate planning or by intestacy; or
distributions by any person other than by us of shares of common
stock or other securities to limited partners, members,
stockholders or affiliates of such person;
125
Table of Contents
126
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127
Table of Contents
(a development stage company)
Contents
F-2
F-3
F-4
F-5
F-6
F-7
F-27
F-28
F-29
F-30
F-31
F-1
Table of Contents
F-2
Table of Contents
(a development stage company)
Consolidated Balance Sheets
December 31,
December 31,
2005
2006
$
6,449,151
$
12,126,581
17,969,096
42,572,468
441,081
321,275
24,859,328
55,020,324
3,278,887
4,357,912
531,739
267,338
$
28,669,954
$
59,645,574
906,226
1,195,318
1,407,025
7,703,775
279,265
1,307,451
2,592,516
10,206,544
704,187
608,767
734,370
2,256,092
2,466,214
2,475,689
30,668,842
30,868,501
27,333,758
54,868,868
35,876,547
40,352
70,288
4,015,140
6,066,876
(16,139
)
14,752
(2,546,846
)
(37,322,440
)
(83,667,350
)
(35,829,933
)
(77,515,434
)
$
28,669,954
$
59,645,574
F-3
Table of Contents
(a development stage company)
Consolidated Statements of Operations
Period from
February 4,
2002
(Inception) to
Years Ended December 31,
December 31,
2004
2005
2006
2006
$
6,300,885
$
13,651,640
$
33,630,262
$
58,803,948
2,081,203
6,876,883
12,276,559
22,791,915
1,029,696
145,961
302,832
952,452
1,557,316
418,080
8,528,049
20,831,355
46,859,273
84,600,955
(8,528,049
)
(20,831,355
)
(46,859,273
)
(84,600,955
)
189,847
609,519
1,990,722
2,807,580
(550,004
)
(81,776
)
(272,890
)
(1,082,933
)
(1,911
)
(280,474
)
(21,963
)
(304,348
)
(1,181,506
)
(1,181,506
)
(8,890,117
)
(20,584,086
)
(46,344,910
)
(84,362,162
)
83,015
611,797
694,812
(8,807,102
)
(19,972,289
)
(46,344,910
)
(83,667,350
)
(19,424,367
)
(19,424,367
)
(125,733
)
(138,743
)
(158,802
)
(450,890
)
$
(8,932,835
)
$
(20,111,032
)
$
(65,928,079
)
$
(103,542,607
)
$
(3.87
)
$
(6.54
)
$
(11.94
)
2,306,541
3,076,649
5,519,749
$
(46,344,910
)
$
(0.37
)
126,507,084
F-4
Table of Contents
(a development stage company)
Consolidated Statements of Changes in Stockholders
Deficiency
Period from February 4, 2002 (inception) to
December 31, 2002,
and the four year period ended December 31, 2006
Deficit
Accumulated
Additional
Other
During the
Total
Common Stock
Paid-In
Comprehensive
Deferred
Development
Stockholders
Shares
Amount
Capital
Gain/ (Loss)
Compensation
Stage
Deficiency
$
$
$
$
$
$
562,041
5,620
78,243
83,863
1,742,000
17,420
400,660
418,080
208,866
(208,866
)
27,348
27,348
8,000
8,000
(10,720
)
(10,720
)
(1,775,353
)
(1,775,353
)
2,304,041
23,040
685,049
(181,518
)
(1,775,353
)
(1,248,782
)
2,500
25
25
14,138
(14,138
)
70,340
70,340
210,000
210,000
4,434
4,434
(16,893
)
(16,893
)
40,500
40,500
(6,767,696
)
(6,767,696
)
2,306,541
23,065
937,228
(125,316
)
(8,543,049
)
(7,708,072
)
67,700
(67,700
)
59,842
59,842
16,118
16,118
(125,732
)
(125,732
)
192,734
192,734
94,500
94,500
(9,083
)
(9,083
)
(8,807,102
)
(8,807,102
)
(8,816,185
)
2,306,541
23,065
1,182,548
(9,083
)
(133,174
)
(17,350,151
)
(16,286,795
)
728,691
7,287
16,641
23,928
999,999
10,000
65,000
75,000
2,778,223
(2,778,223
)
364,551
364,551
111,471
111,471
(138,743
)
(138,743
)
(7,056
)
(7,056
)
(19,972,289
)
(19,972,289
)
(19,979,345
)
4,035,231
40,352
4,015,140
(16,139
)
(2,546,846
)
(37,322,440
)
(35,829,933
)
1,993,623
19,936
138,345
158,281
1,000,000
10,000
1,210,000
1,220,000
(2,546,846
)
2,546,846
400,000
2,816,210
2,816,210
475,446
475,446
(158,802
)
(158,802
)
117,383
117,383
19,424,367
19,424,367
(19,424,367
)
(19,424,367
)
30,891
30,891
(46,344,910
)
(46,344,910
)
(46,314,019
)
7,428,854
$
70,288
$
6,066,876
$
14,752
$
$
(83,667,350
)
$
(77,515,434
)
F-5
Table of Contents
(a development stage company)
Consolidated Statements of Cash Flows
Period from
February 4,
2002
(Inception) to
Years Ended December 31,
December 31,
2004
2005
2006
2006
$
(8,807,102
)
$
(19,972,289
)
$
(46,344,910
)
$
(83,667,350
)
435,934
525,267
143,293
302,832
952,452
1,554,648
59,842
364,551
522,081
2,816,210
2,816,210
1,220,000
1,220,000
16,118
111,471
475,446
691,332
1,911
280,474
21,963
304,348
1,029,696
418,080
94,500
135,000
(147,664
)
(285,698
)
119,806
(321,275
)
(19,936
)
(491,202
)
264,401
(288,505
)
(1,008,299
)
1,565,512
6,585,842
8,899,093
(9,231,403
)
(18,124,349
)
(33,888,790
)
(66,161,375
)
2,162,275
3,092,620
37,441,039
42,695,934
(6,362,527
)
(16,989,847
)
(62,013,520
)
(85,370,850
)
(227,317
)
(3,040,442
)
(2,031,477
)
(6,942,256
)
(4,427,569
)
(16,937,669
)
(26,603,958
)
(49,617,172
)
12,877,598
40,316,115
63,370,682
118,969,210
1,200,000
5,000,000
(171,914
)
(272,697
)
(880,747
)
(1,477,661
)
23,928
158,281
182,234
75,000
91,307
166,307
1,111,787
3,430,655
5,065,038
13,905,684
41,254,133
66,170,178
127,905,128
246,712
6,192,115
5,677,430
12,126,581
10,324
257,036
6,449,151
$
257,036
$
6,449,151
$
12,126,581
$
12,126,581
$
19,570
$
481,577
$
272,890
$
788,014
$
$
$
$
8,000
$
1,802
$
$
$
49,950
$
5,000,000
$
$
$
5,000,000
$
125,732
$
138,743
$
158,802
$
450,890
$
$
$
19,424,367
$
19,424,367
F-6
Table of Contents
F-7
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-8
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-9
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-10
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-11
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Year Ended
December 31, 2006
74.8
%
4.7
%
6.25
$
0.00
F-12
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Years Ended December 31,
2004
2005
2006
$
(8,807,102
)
$
(19,972,289
)
$
(46,344,910
)
(19,424,367
)
(125,733
)
(138,743
)
(158,802
)
$
(8,932,835
)
$
(20,111,032
)
$
(65,928,079
)
2,306,541
3,076,649
5,519,749
F-13
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Gross
Gross
Unrealized
Unrealized
Fair
Cost
Gains
Losses
Value
$
17,985,235
$
$
(16,139
)
$
17,969,096
$
42,557,716
$
16,016
$
(1,264
)
$
42,572,468
F-14
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
December 31,
2005
2006
$
284,913
$
563,729
15,921
104,914
1,790,873
2,684,613
251,703
525,504
109,345
2,036,468
1,430,996
3,883,751
5,915,228
(604,864
)
(1,557,316
)
$
3,278,887
$
4,357,912
December 31,
2005
2006
$
592,594
$
312,244
253,161
53,163
5,681,741
14,719
1,235,595
182,303
482,482
252,002
50,796
$
1,407,025
$
7,703,775
F-15
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-16
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-17.1
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Series A
Series B
Series C
Series D
Shares
Amount
Shares
Amount
Shares
Amount
Shares
Amount
$
$
$
$
3,333,334
2,500,000
(95,185
)
10,720
3,333,334
2,415,535
16,893
3,333,334
2,432,428
21,176,472
18,000,000
(122,402
)
(421,802
)
16,893
108,840
3,333,334
2,449,321
21,176,472
17,564,636
15,294,119
13,000,000
(5,793
)
21,825,131
27,499,665
(177,757
)
16,893
109,999
11,850
3,333,334
2,466,214
36,470,591
30,668,842
21,825,131
27,333,758
107,420
91,307
21,825,131
27,499,667
22,154,160
35,946,897
(75,882
)
9,475
108,352
35,443
5,532
3,333,334
$
2,475,689
36,578,011
$
30,868,501
43,650,262
$
54,868,868
22,154,160
$
35,876,547
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-18
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-19
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Weighted
Weighted
Average
Average
Remaining
Number of
Exercise
Contractual
Aggregate
Shares
Price
Life
Intrinsic Value
(in thousands)
(in millions)
1,122.8
$
0.02
2,083.9
$
0.08
(6.7
)
$
0.08
3,200.0
$
0.06
7,576.8
$
0.29
(728.7
)
$
0.03
(769.1
)
$
0.06
9,279.0
$
0.28
7,538.5
$
0.80
(1,993.6
)
$
0.08
(810.2
)
$
0.30
14,013.7
$
0.57
8.4 years
$
10.5
12,542.6
$
0.55
8.3 years
$
9.6
3,123.8
$
0.29
7.4 years
$
3.2
F-20
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Restricted Stock
Weighted
Number of
Average Grant
Shares
Date Fair Value
(in thousands)
$
400.0
$
1.19
(16.7
)
$
1.09
$
383.3
$
1.19
$
1,629,181
1,654,965
1,527,021
1,295,338
1,306,790
218,525
$
7,631,820
F-21
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
$
1,624,727
1,558,565
770,851
159,282
4,113,425
(549,882
)
3,563,543
(1,307,451
)
$
2,256,092
F-22
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
For Years Ended December 31,
2004
2005
2006
$
$
63,747
$
246,307
32,983
1,309,070
96,730
1,555,377
198,941
132,097
1,288,355
730,903
1,344,230
3,610,574
6,387,827
14,463,790
27,257,344
75,165
28,829
121,398
7,392,836
16,065,676
34,833,048
(29,865
)
(57,027
)
7,362,971
16,008,649
34,833,048
(7,362,971
)
(16,008,649
)
(34,833,048
)
$
$
$
F-23
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Years Ended December 31,
2004
2005
2006
(34
)%
(34
)%
(34
)%
(6
)
(6
)
(6
)
1
1
1
(5
)
(3
)
(4
)
(2
)
(1
)
2
(1
)
(3
)
44
43
41
(1
)%
(3
)%
0
%
Years Ended December 31,
2004
2005
2006
$
$
$
(83,015
)
(611,797
)
$
(83,015
)
$
(611,797
)
$
F-24
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
F-25
Table of Contents
(a development stage company)
Notes To Consolidated Financial
Statements (Continued)
Quarters Ended
March 31
June 30
September 30
December 31
$
(3,391,294
)
$
(5,345,461
)
$
(5,425,901
)
$
(5,809,634
)
(3,423,017
)
(5,377,184
)
(5,463,549
)
(5,847,282
)
(1.48
)
(2.13
)
(1.60
)
(1.45
)
(8,287,253
)
(8,623,668
)
(11,642,604
)
(17,791,385
)
(8,327,864
)
(28,088,646
)
(11,683,215
)
(17,828,354
)
(2.06
)
(5.20
)
(2.00
)
(2.64
)
(1)
Per common share amounts for the
quarters and full years have been calculated separately.
Accordingly, quarterly amounts do not add to the annual amounts
because of differences on the weighted-average common shares
outstanding during each period principally due to the effect of
the Companys issuing shares of its common stock during the
year.
F-26
Table of Contents
(a development stage company)
Consolidated Balance Sheets
December 31,
March 31,
2006
2007
Pro Forma
(unaudited)
(unaudited)
$
12,126,581
$
19,852,531
$
20,232,977
42,572,468
47,853,240
47,853,240
321,275
387,577
387,577
55,020,324
68,093,348
68,473,794
4,357,912
4,264,661
4,264,661
267,338
689,823
689,823
$
59,645,574
73,047,832
73,428,278
1,195,318
1,737,650
1,737,650
7,703,775
5,486,732
5,486,732
1,307,451
1,342,491
1,342,491
10,206,544
8,566,873
8,566,873
608,767
672,418
2,256,092
1,907,039
1,907,039
2,475,689
2,477,053
30,868,501
30,894,587
54,868,868
54,877,663
35,876,547
59,934,392
70,288
82,427
1,292,301
6,066,876
6,981,092
154,335,359
14,752
16,577
16,577
(83,667,350
)
(93,362,289
)
(92,689,871
)
(77,515,434
)
(86,282,193
)
62,954,366
$
59,645,574
$
73,047,832
$
73,428,278
F-27
Table of Contents
(a development stage company)
Consolidated Statements of Operations
Period from
February 4,
2002
(Inception) to
Three Months Ended March 31,
March 31,
2006
2007
2007
(unaudited)
(unaudited)
(unaudited)
$
6,027,679
$
7,084,763
$
65,888,711
1,900,497
2,849,957
25,641,872
1,029,696
199,224
297,414
1,854,730
418,080
8,127,400
10,232,134
94,833,089
(8,127,400
)
(10,232,134
)
(94,833,089
)
237,909
693,303
3,500,883
(51,774
)
(92,169
)
(1,175,102
)
(343,408
)
(63,651
)
(367,999
)
(2,580
)
(288
)
(1,181,794
)
(8,287,253
)
(9,694,939
)
(94,057,101
)
694,812
(8,287,253
)
(9,694,939
)
(93,362,289
)
(19,424,367
)
(40,611
)
(40,988
)
(491,878
)
$
(8,327,864
)
$
(9,735,927
)
$
(113,278,534
)
$
(2.06
)
$
(1.36
)
4,048,418
7,154,690
$
(9,694,939
)
$
(0.08
)
128,142,025
F-28
Table of Contents
(a development stage company)
Statements of Changes in Stockholders Deficiency
(Unaudited)
Deficit
Accumulated
Accumulated
Additional
Other
During the
Total
Common Stock
Paid-In
Comprehensive
Development
Stockholders
Shares
Amount
Capital
Gain/(Loss)
State
Deficiency
7,428,854
$
70,288
$
6,066,876
$
14,752
$
(83,667,350
)
$
(77,515,434
)
1,213,841
12,139
193,634
205,773
704,549
704,549
57,020
57,020
(40,988
)
(40,988
)
1,826
1,826
(9,694,939
)
(9,694,939
)
(9,693,113
)
8,642,695
$
82,427
$
6,981,092
$
16,577
$
(93,362,289
)
$
(86,282,193
)
F-29
Table of Contents
(a development stage company)
Consolidated Statements of Cash Flows
Period from
February 4,
2002
(Inception) to
Three Months Ended March 31,
March 31,
2006
2007
2007
(unaudited)
(unaudited)
(unaudited)
$
(8,287,253
)
$
(9,694,939
)
$
(93,362,289
)
525,267
199,224
297,414
1,852,062
522,081
218,965
704,549
3,520,759
1,220,000
359,019
57,020
748,352
343,408
63,651
367,999
1,029,696
418,080
135,000
162,543
(66,302
)
(387,577
)
64,401
(154,580
)
(443,085
)
796,078
(1,942,616
)
6,956,477
(6,143,615
)
(10,735,803
)
(76,897,178
)
10,989,643
21,564,695
64,260,629
(2,263,220
)
(26,843,642
)
(112,214,492
)
(616,933
)
(204,163
)
(7,146,419
)
8,109,490
(5,483,110
)
(55,100,282
)
24,053,102
143,022,312
5,000,000
(175,114
)
(314,013
)
(1,791,674
)
51,000
205,773
388,008
166,307
2,007,966
5,065,038
1,883,852
23,944,863
151,849,991
3,849,727
7,725,950
19,852,531
6,449,151
12,126,581
$
10,298,878
$
19,852,531
$
19,852,531
$
34,453
$
92,169
$
880,183
$
$
$
8,000
$
$
$
49,950
$
$
$
5,000,000
$
40,611
$
40,988
$
491,878
$
$
$
19,424,367
F-30
Table of Contents
(a development stage company)
Notes to Unaudited Financial Statements
F-31
Table of Contents
(a development stage company)
Notes to Unaudited Financial Statements
(Continued)
F-32
Table of Contents
(a development stage company)
Notes to Unaudited Financial Statements
(Continued)
Three Months
Three Months
Ended
Ended
March 31, 2006
March 31, 2007
72.7
%
78.8
%
4.6
%
4.7
%
6.25
6.25
$
0.00
$
0.00
Options Outstanding
Weighted
Weighted
Average
Weighted
Average
Remaining
Average
Number of
Exercise
Contractual
Grant Date
Shares
Price
Life
Fair Value
(in thousands)
(in millions)
14,013.7
$
0.57
134.0
$
1.32
(1,213.8
)
$
0.18
(78.7
)
$
1.09
12,855.2
$
0.61
8.1 years
$
15.2
11,761.7
$
0.60
8.1 years
$
13.9
3,970.9
$
0.59
7.6 years
$
4.8
Table of Contents
(a development stage company)
Notes to Unaudited Financial Statements
(Continued)
Three Months Ended March 31,
2006
2007
$
(8,327,864
)
$
(9,735,927
)
$
(2.06
)
$
(1.36
)
Three Months Ended March 31,
2006
2007
$
(8,287,253
)
$
(9,694,939
)
10,819
1,826
$
(8,276,434
)
$
(9,693,113
)
Table of Contents
(a development stage company)
Notes to Unaudited Financial Statements
(Continued)
Series A
Series B
Series C
Series D
Shares
Amount
Shares
Amount
Shares
Amount
Shares
Amount
3,333,334
$
2,475,689
36,578,011
$
30,868,501
43,650,262
$
54,868,868
22,154,160
$
35,876,547
14,823,985
24,053,102
1,364
26,086
8,795
4,743
3,333,334
$
2,477,053
36,578,011
$
30,894,587
43,650,262
$
54,877,663
36,978,145
$
59,934,392
Table of Contents
F-36
Table of Contents
$
9,229
$
9,125
$
5,000
*
*
*
*
*
*
$
*
*
To be filed by amendment.
II-1
Table of Contents
II-2
Table of Contents
II-3
Table of Contents
Exhibit
1
.1**
Form of Underwriting Agreement
3
.1*
Amended and Restated Certificate
of Incorporation of the Registrant, as currently in effect
3
.2**
Form of Restated Certificate of
Incorporation of the Registrant to be effective upon completion
of this offering
3
.3*
By-laws of the Registrant, as
currently in effect
3
.4
Form of Amended and Restated
By-laws of the Registrant to be effective upon completion of
this offering
4
.1**
Specimen Stock Certificate
evidencing shares of common stock
4
.2*
Third Amended and Restated
Investor Rights Agreement, dated as of September 13, 2006,
as amended
4
.3*
Warrant to purchase shares of
common stock, dated August 28, 2002
5
.1**
Opinion of Bingham McCutchen LLP
10
.1
2002 Equity Incentive Plan, as
amended, and forms of option agreements thereunder
10
.2**
2007 Equity Incentive Plan
10
.3+*
License Agreement, dated as of
April 15, 2002, by and between the Registrant and Mount
Sinai School of Medicine of New York University, as amended
10
.4+*
License Agreement, dated as of
June 26, 2003, by and between the Registrant and University
of Maryland, Baltimore County, as amended
10
.5+*
Exclusive License Agreement, dated
as of June 8, 2005, by and between the Registrant and Novo
Nordisk, A/S
10
.6*
Sublease Agreement, dated as of
May 12, 2005, by and between the Registrant and Purdue
Pharma, L.P.
10
.7*
Amended and Restated Employment
Agreement, dated as of April 28, 2006, by and between the
Registrant and John F. Crowley
10
.8*
Letter Agreement, dated as of
November 9, 2004, by and between the Registrant and Matthew
R. Patterson
10
.9*
Letter Agreement, dated as of
July 27, 2006, by and between the Registrant and James E.
Dentzer
10
.10*
Letter Agreement, dated as of
December 19, 2005, by and between the Registrant and David
Lockhart, Ph.D.
10
.11*
Letter Agreement, dated as of
February 2, 2006, by and between the Registrant and Karin
Ludwig, M.D.
10
.12*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and
David Palling, Ph.D.
10
.13*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and S.
Nicole Schaeffer
10
.14*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and
Gregory P. Licholai, M.D.
10
.15*
Consulting Agreement, dated as of
February 28, 2006, by and between the Registrant and Donald
J. Hayden, Jr.
10
.16*
Letter Agreement, dated as of
May 12, 2006, by and between the Registrant and Douglas A.
Branch
10
.17*
Form of Director and Officer
Indemnification Agreement
10
.18*
Letter Agreement, dated as of
May 12, 2006, by and between the Registrant and Mark Simon
10
.19
Employment Agreement, dated as of
September 11, 2006, by and between the Registrant and
Donald J. Hayden, Jr.
II-4
Table of Contents
Exhibit
10
.20
Restricted Stock Agreement, dated
as of March 8, 2007, by and between the Registrant and
James E. Dentzer
10
.21
Restricted Stock Agreement, dated
as of March 8, 2007, by and between the Registrant and
Glenn P. Sblendorio
10
.22
Lease Agreement, dated as of
July 31, 2006, by and between the Registrant and Cedar
Brook II Corporate Center, L.P.
21
.1*
Subsidiaries of the Registrant
23
.1
Consent of Ernst & Young
LLP
23
.2**
Consent of Bingham McCutchen LLP
(included in Exhibit 5.1)
24
.1*
Powers of Attorney (included on
signature page)
*
Previously filed.
**
To be filed by amendment.
+
Portions of this exhibit have been
omitted pursuant to a confidential treatment request. This
information has been filed or will be filed separately with the
Securities and Exchange Commission.
Table of Contents
By:
II-6
Table of Contents
Director
April 27, 2007
Director
April 27, 2007
Director
April 27, 2007
Director
April 27, 2007
*By:
II-7
Table of Contents
Exhibit
1
.1**
Form of Underwriting Agreement
3
.1*
Amended and Restated Certificate
of Incorporation of the Registrant, as currently in effect
3
.2**
Form of Restated Certificate of
Incorporation of the Registrant to be effective upon completion
of this offering
3
.3*
By-laws of the Registrant, as
currently in effect
3
.4
Form of Amended and Restated
By-laws of the Registrant to be effective upon completion of
this offering
4
.1**
Specimen Stock Certificate
evidencing shares of common stock
4
.2*
Third Amended and Restated
Investor Rights Agreement, dated as of September 13, 2006,
as amended
4
.3*
Warrant to purchase shares of
common stock, dated August 28, 2002
5
.1**
Opinion of Bingham McCutchen LLP
10
.1
2002 Equity Incentive Plan, as
amended, and forms of option agreements
10
.2**
2007 Equity Incentive Plan
10
.3+*
License Agreement, dated as of
April 15, 2002, by and between the Registrant and Mount
Sinai School of Medicine of New York University, as amended
10
.4+*
License Agreement, dated as of
June 26, 2003, by and between the Registrant and University
of Maryland, Baltimore County, as amended
10
.5+*
Exclusive License Agreement, dated
as of June 8, 2005, by and between the Registrant and Novo
Nordisk, A/S
10
.6*
Sublease Agreement, dated as of
May 12, 2005, by and between the Registrant and Purdue
Pharma, L.P.
10
.7*
Amended and Restated Employment
Agreement, dated as of April 28, 2006, by and between the
Registrant and John F. Crowley
10
.8*
Letter Agreement, dated as of
November 9, 2004, by and between the Registrant and Matthew
R. Patterson
10
.9*
Letter Agreement, dated as of
July 27, 2006, by and between the Registrant and James E.
Dentzer
10
.10*
Letter Agreement, dated as of
December 19, 2005, by and between the Registrant and David
Lockhart, Ph.D.
10
.11*
Letter Agreement, dated as of
February 2, 2006, by and between the Registrant and Karin
Ludwig, M.D.
10
.12*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and
David Palling, Ph.D.
10
.13*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and S.
Nicole Schaeffer
10
.14*
Change in Control Agreement, dated
as of March 6, 2006, by and between the Registrant and
Gregory P. Licholai, M.D.
10
.15*
Consulting Agreement, dated as of
February 28, 2006, by and between the Registrant and Donald
J. Hayden, Jr.
10
.16*
Letter Agreement, dated as of
May 12, 2006, by and between the Registrant and Douglas A.
Branch
10
.17*
Form of Director and Officer
Indemnification Agreement
10
.18*
Letter Agreement, dated as of
May 12, 2006, by and between the Registrant and Mark Simon
10
.19
Employment Agreement, dated as of
September 11, 2006, by and between the Registrant and
Donald J. Hayden, Jr.
10
.20
Restricted Stock Agreement, dated
as of March 8, 2007, by and between the Registrant and
James E. Dentzer
10
.21
Restricted Stock Agreement, dated
as of March 8, 2007, by and between the Registrant and
Glenn P. Sblendorio
10
.22
Lease Agreement, dated as of
July 31, 2006, by and between the Registrant and Cedar
Brook II Corporate Center, L.P.
21
.1*
Subsidiaries of the Registrant
23
.1
Consent of Ernst & Young
LLP
23
.2**
Consent of Bingham McCutchen LLP
(included in Exhibit 5.1)
24
.1*
Powers of Attorney (included on
signature page)
*
Previously filed.
**
To be filed by amendment.
+
Portions of this exhibit have been
omitted pursuant to a confidential treatment request. This
information has been filed or will be filed separately with the
Securities and Exchange Commission.
-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
-10-
-11-
-12-
-13-
Exhibit 10.1
AMICUS THERAPEUTICS, INC.
2002 EQUITY INCENTIVE PLAN
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Amicus Therapeutics, Inc. (the "Company") and its stockholders the benefits arising from capital stock ownership by employees and members of the Board of Directors of, and consultants and advisors to, the Company and any Parent Corporation, or Subsidiary (each as defined in Section 14 hereof), who are expected to contribute to the Company's future growth and success.
2. Types of Awards and Administration.
(a) Types of Awards. Awards pursuant to this Plan shall be authorized by action of the Board of Directors of the Company (or a Committee designated by the Board of Directors) and may be (i) incentive stock options ("Incentive Stock Options") to purchase shares of the Company's Common Stock, par value $.01 per share ("Common Stock"), meeting the requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) non-statutory options to purchase shares of Common Stock, which are not intended to meet the requirements of Code Section 422 ("Non-Statutory Stock Options" and, together with Incentive Stock Options, "Options"), or (iii) shares of Common Stock ("Restricted Shares" and, together with "Options", "Awards").
(b) Administration. This Plan will be administered by the Board of Directors of the Company, whose construction and interpretation of the terms and provisions hereof shall be final and conclusive. The Board of Directors may in its sole discretion make Awards and authorize the Company to issue shares of Common Stock pursuant to such Awards, as provided in, and subject to the terms and conditions of, this Plan. The Board of Directors shall have authority, subject to the express provisions of this Plan, to construe this Plan and the respective written agreements setting forth the terms and conditions of an Award (each, an "Award Agreement"), to prescribe, amend and rescind rules and regulations relating to this Plan, to determine the terms and provisions of Award Agreements, which need not be identical, to advance the lapse of any waiting, forfeiture or installment periods and exercise dates, and to make all other determinations in the judgment of the Board of Directors necessary or desirable for the administration of this Plan. The Board of Directors may correct any defect or supply any omission or reconcile any inconsistency in this Plan or in any Award Agreement in the manner and to the extent it shall deem expedient to carry this Plan into effect and it shall be the sole and final judge of such expediency. No director shall be liable for any action or determination taken or made in good faith under or with respect to this Plan or any Award.
(c) Delegation of Authority. The Board of Directors may, to the full extent permitted by law, delegate any or all of its powers under this Plan to a committee (the "Committee") of two or more directors, and if the Committee is so appointed all references to the Board of Directors in this Plan shall mean and relate to such Committee to the extent of the powers so delegated. The Board of Directors may, from time to time, delegate to the Chief Executive Officer authority
under this Plan with respect to aggregate numbers of shares to permit specific Awards by the Chief Executive Officer to employees and consultants of, and advisors to, the Company, any Parent Corporation or any Subsidiary.
3. Eligibility.
Awards shall be made only to persons who are, at the time of grant, officers, employees or directors of, or consultants or advisors to, (provided, in the case of Incentive Stock Options, such directors or officers are then also employees of) the Company or any Parent Corporation or Subsidiary. A person who has been granted an Award may, if such person is otherwise eligible, be granted an additional Award or Awards if the Board of Directors shall so determine.
4. Stock Subject to Plan.
Subject to adjustment as provided in Sections 10 and 11 hereof, the maximum number of shares of Common Stock of the Company which may be issued and sold pursuant to Awards made under this Plan is 862,611 shares. Such shares may be authorized and unissued shares or may be shares issued and thereafter acquired by the Company. If either (i) Restricted Shares are forfeited following their award under this Plan, or (ii) Options granted under this Plan are canceled, or expire or terminate for any reason without having been exercised in full, the forfeited Restricted Shares, or the unpurchased shares of Common Stock subject to any such Option, as the case may be, shall again be available for subsequent Awards under this Plan. Restricted Shares, Options and shares of Common Stock issuable upon exercise of Options granted under this Plan may be subject to transfer restrictions, repurchase rights or other restrictions as shall be determined by the Board of Directors.
5. Award Agreements.
As a condition to the grant of an Award under this Plan, each recipient of an Award shall sign an Award Agreement not inconsistent with this Plan in such form, and providing for such terms and conditions, as the Board of Directors shall determine at the time such Award is authorized to be granted. Such Award Agreements need not be identical but shall comply with, and be subject to, the terms and conditions set forth herein.
6. Options Generally.
(a) Purchase Price. The purchase price per share of Common Stock deliverable upon the exercise of (i) a Non-Statutory Stock Option may be less than the fair market value of the Common Stock, and (ii) an Incentive Stock Option may not be less than the fair market value of the Common Stock, as such purchase price is determined by the Board of Directors on the date such Option is authorized to be granted; provided, that in the event that the Common Stock of the Company becomes registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and is publicly traded ("Publicly Traded"), the fair market value of the Common Stock shall be equal to the closing price of the Common Stock on the date such Option is authorized to be granted.
(b) Payment of Exercise Price. Payment of the exercise price of an Option shall be in cash or, in the sole discretion of the Board of Directors, in shares of capital stock of the Company held by the Option holder for greater than six months, or by any other lawful means. The Company may, in its sole discretion, make loans to an Option holder in an amount equal to all or part of the exercise price of Options held by such Option holder which such loans may be secured or unsecured, as agreed upon between the parties at such time; provided, that the grant of a loan on any occasion to one or more Option holder(s) shall not obligate the Company to grant loans on any other occasion or to such or any other Option holder.
(c) Option Term. Each Option and all rights thereunder shall expire on such date as the Board of Directors shall determine on the date such Option is authorized to be granted, but in no event may any Option remain in effect after the expiration of ten years from the day on which such Option is granted (or five years in the case of Options described in paragraph (b) of Section 7 hereof), and such Option shall be subject to earlier termination as provided in this Plan.
(d) Exercise of Options. Each Option shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the Award Agreement evidencing such Option; provided, however, that,
(i) no Option shall have a term in excess of ten years from the date of grant
(or five years in the case of Options described in paragraph (b) of Section 7
hereof), and (ii) the periods of time following an Option holder's cessation of
employment with the Company, any Parent Corporation or Subsidiary, or service as
a consultant or advisor to the Company, any Parent Corporation or Subsidiary, or
following an Option holder's death or disability, during which an Option may be
exercised, as provided in paragraph (f) below, shall not be included for
purposes of determining the number of shares of Common Stock with respect to
which such Option may be exercised.
(e) Rights as a Stockholder. The holder of an Option shall have no rights as a stockholder with respect to any shares covered by the Option until the date of issue of a stock certificate to such person for such shares. Except as otherwise expressly provided in the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.
(f) Effect of Cessation of Service. Notwithstanding anything contained in this Plan to the contrary, no Option may be exercised unless, at the time of such exercise, the recipient is, and has been continuously since the date of grant of such recipient's Option, employed by or serving as a director, consultant or an advisor to, one or more of the Company, a Parent Corporation or a Subsidiary, except if and to the extent the applicable Award Agreement provides otherwise (other than with respect to an Incentive Stock Option for which Section 7 hereof shall apply); provided, however, that in no event may any Option be exercised after the expiration date of the Option.
(g) Transfer Restrictions. Except as otherwise approved by the Board of Directors, during the life of the holder thereof an Option shall be exercisable only by or on behalf of such person and no Option granted under the Plan shall be assignable or transferable by the person to whom it is granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution.
(h) Other Awards. Awards of Options may be made alone, in addition to or in tandem with Awards of Restricted Shares under the Plan.
7. Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock Options shall be specifically designated as Incentive Stock Options and shall be subject to the following additional terms and conditions:
(a) Dollar Limitation. The aggregate fair market value (determined as of the respective date or dates of the grant) of the Common Stock with respect to which Incentive Stock Options granted to any employee under the Plan (and under any other incentive stock option plans of the Company, and any Parent Corporation and Subsidiary) are exercisable for the first time shall not exceed $100,000 in any one calendar year. In the event that Section 422 of the Code is amended to alter the limitation set forth therein so that following such amendment such limitation shall differ from the limitation set forth in this paragraph (a), the limitation of this paragraph (a) shall be automatically adjusted accordingly.
(b) 10% Stockholder. If any employee to whom an Incentive Stock Option is to be granted under the Plan is at the time of the grant of such Option the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or of any Parent Corporation or any Subsidiary, then the following special provisions shall be applicable to the Incentive Stock Option granted to such individual:
(i) the purchase price per share of Common Stock subject to such Incentive Stock Option shall not be less than 110% of the fair market value thereof at the time of grant; and
(ii) the exercise period of such Incentive Stock Option shall not exceed five years from the date of grant.
Except as modified by the preceding provisions of this Section 7, all the provisions of the Plan applicable to Options generally shall be applicable to Incentive Stock Options granted hereunder.
(c) Effect of Cessation of Service. No Incentive Stock Option may be exercised unless, at the time of such exercise, the holder of such Option is, and has been continuously since the date of grant of such Incentive Stock Option, employed by one or more of the Company, a Parent Corporation or Subsidiary, except that if and to the extent the Award Agreement so provides:
(i) the Option may be exercised within the period of three months after the date the holder of an Option ceases to be employed by the Company, a Parent Corporation or a Subsidiary (or within such lesser period as may be specified in the Award Agreement) for any reason other than death or disability;
(ii) if the holder of an Option dies while in the employ of the Company, a Parent Corporation or a Subsidiary or within three months after such holder ceases to be such an employee, the Option may be exercised by the person to whom it is transferred
by will or the laws of descent and distribution within the period of one year after the date of death (or within such lesser period as may be specified in the Award Agreement); and
(iii) if the holder of an Option becomes disabled (within the meaning of Section 22(e)(3) of the Code) while in the employ of the Company, a Parent Corporation or a Subsidiary, the Option may be exercised within the period of one year after the date the holder ceases to be an employee of any of the foregoing entities because of such disability (or within such lesser period as may be specified in the option agreement or instrument);
Except as modified by the preceding provisions of this Section 7, all the provisions of the Plan shall be applicable to Incentive Stock Options granted hereunder.
8. Restricted Shares.
(a) Awards of Shares. Awards of Restricted Shares may be made under this Plan on such terms and conditions as the Board of Directors may from time to time approve. Awards of Restricted Shares may be made alone, in addition to or in tandem with Awards of Options under this Plan. Subject to the terms of this Plan, the Board of Directors shall determine the number of Restricted Shares to be awarded to each recipient and the Board of Directors may impose different terms and conditions on a Restricted Share Award than on any other Award made to the same recipient or other Award recipients. Each recipient of Restricted Shares shall, except in the circumstances described in paragraph (b) below, be issued one or more stock certificates evidencing such Restricted Shares. Each such certificate shall be registered in the name of such recipient, and shall bear an appropriate legend referring to the terms and conditions applicable to the Restricted Shares evidenced thereby.
(b) Forfeiture of Restricted Shares. In making an Award of Restricted Shares, the Board of Directors may impose a requirement that the recipient must remain in the employment or service (including service as an advisor or consultant) of the Company or any Parent Corporation or Subsidiary for a specified minimum period of time, or else forfeit all or a portion of such Restricted Shares. In the case of a holder of Restricted Shares whose relationship with the Company or any Parent Corporation or Subsidiary changes during the term of any applicable forfeiture period in a manner that does not constitute a complete separation therefrom (for example, from employee to consultant or director, or vise versa), the Board of Directors shall have authority to determine whether or not such change constitutes a cessation of employment or service for purposes of such requirement. In such case, the certificate(s) evidencing the Restricted Shares shall be held in custody by the Company until such Shares are no longer subject to forfeiture.
(c) Rights as a Stockholder; Stock Dividends. Subject to any restrictions set forth in the applicable Award Agreement, a recipient of Restricted Shares shall have voting, dividend and all other rights of a stockholder of the Company as of the date such Shares are issued and registered in recipient's name (whether or not certificates evidencing such Shares are delivered to such recipient). Except as may otherwise be set forth in the applicable Award Agreement, stock dividends issued with respect to Restricted Shares shall be treated as additional Restricted
Shares under the applicable Award Agreement and shall be subject to the same terms and conditions that apply to the Restricted Shares with respect to which such dividends are issued.
9. General Award Restrictions.
(a) Investment Representations. The Company may require any person to whom an Award is made, as a condition of such Award, to give written assurances in substance and form satisfactory to the Company to the effect that such person is acquiring the Common Stock subject to the Award for such person's own account for investment and not with any present intention of selling or otherwise distributing the same, and to such other effects as the Company deems necessary or appropriate in order to comply with applicable Federal and State securities laws.
(b) Special Conditions to Issuance of Shares. Each Award shall be subject to the requirement that, if at any time counsel to the Company shall determine that the listing, registration or qualification of the shares of Common Stock subject to such Award upon any securities exchange or under any State or Federal law, or the consent or approval of any governmental or regulatory body, is necessary as a condition of, or in connection with, the issuance or purchase of such shares thereunder, such shares may not be issued unless such listing, registration, qualification, consent or approval shall have been effected or obtained on conditions acceptable to the Board of Directors. Nothing herein shall be deemed to require the Company to apply for or to obtain such listing, registration or qualification.
10. Recapitalization.
In the event that the outstanding shares of Common Stock of the Company are changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, stock dividend, combination or subdivision, appropriate adjustment shall be made in the number and kind of shares available under this Plan and under any Options granted under this Plan. Such adjustment to outstanding Options shall be made without change in the total exercise price applicable to the unexercised portion of such Options, but a corresponding adjustment in the applicable Option exercise price per share shall be made. No such adjustment shall be made which would, within the meaning of any applicable provisions of the Code, constitute a modification, extension or renewal of any Option or a grant of additional benefits to the holder of an Option.
11. Reorganization of the Company.
In case (i) of any consolidation or merger involving the Company if the shareholders of the Company immediately before such merger or consolidation do not own, directly or indirectly, immediately following such merger or consolidation, more than fifty percent (50%) of the combined voting power of the outstanding voting securities of the corporation resulting from such merger or consolidation in substantially the same proportion as their ownership of the outstanding voting securities of the Company immediately before such merger or consolidation; (ii) of any sale, lease, license, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the business and/or assets of the Company; or (iii) any person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) shall become
(x) the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of over 50% of the combined voting power of the Company's then outstanding voting securities entitled to vote generally or (y) a "controlling person" (as defined in Rule 405 under the Securities Act of 1933, as amended) (a "Controlling Person") of the Company (each of the events described in the foregoing clauses (i), (ii) and (iii), a "Reorganization Event"), the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, shall, as to outstanding Options, either (x) make appropriate provision for the protection of any such outstanding Options by the substitution on an equitable basis of appropriate stock of the Company, or of the merged, consolidated or otherwise reorganized corporation which will be issuable in respect of the shares of Common Stock of the Company, provided that no additional benefits shall be conferred upon holders of Options as a result of such substitution, and the excess of the aggregate fair market value of the shares subject to any Option immediately after such substitution over the purchase price thereof is not more than the excess of the aggregate fair market value of the shares subject to such Option immediately before such substitution over the purchase price thereof, or (y) upon written notice to the holders of Options, provide that all unexercised Options must be exercised within a specified number of days of the date of such notice or they will be terminated. In any such case, the Board of Directors may, in its discretion, accelerate the exercise dates of outstanding Options, and the vesting dates of any Restricted Shares subject to forfeiture.
12. No Special Employment Rights.
Nothing contained in this Plan or in any Award Agreement shall confer upon any Award recipient any right with respect to the continuation of such person's employment by the Company (or any Parent Corporation or Subsidiary) or interfere in any way with the right of the Company (or any Parent Corporation or Subsidiary), subject to the terms of any separate agreement to the contrary, at any time to terminate such employment or to increase or decrease the compensation of the Award recipient from the rate in existence at the time of the Award. Whether an authorized leave of absence, or absence in military or government service, shall constitute termination or cessation of employment for purposes of this Plan or any Award shall be determined by the Board of Directors.
13. Other Employee Benefits.
The amount of any compensation deemed to be received by an employee as a result of any Award (including the exercise of an Option, or the sale of shares of Common Stock received upon such exercise or of Restricted Shares) will not constitute "earnings" with respect to which any other employee benefits of such employee are determined, including without limitation benefits under any pension, profit sharing, life insurance or salary continuation plan.
14. Definitions.
(a) Subsidiary. The term "Subsidiary" as used in this Plan shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. For purposes only of Awards of Non-Statutory Options or Restricted Shares, the
term "Subsidiary" shall also mean any partnership or limited partnership of which the Company or any Subsidiary controls 50% or more of the voting power, or any corporation in an unbroken chain of Subsidiaries if each of the Subsidiaries other than the last Subsidiary in the unbroken chain either owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations or controls 50% or more of the voting power of any such partnership or limited partnership in such chain.
(b) Parent Corporation. The term "Parent Corporation" as used in this Plan shall mean any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of the corporations other than the Company owns stock possessing 50% or more of the combined voting power of all classes of stock in one of the other corporations in such chain.
(c) Employment. The term "employment", as used in this Plan and in any Award Agreement, shall, unless the context otherwise requires, be defined in accordance with the provisions of Section 1.421-7(h) of the Federal Income Tax Regulations (or any successor regulations).
15. Amendment of this Plan.
The Board of Directors may at any time and from time to time modify, amend
or terminate this Plan in any respect, except to the extent stockholder approval
is required by law. The termination or any modification or amendment of this
Plan shall not, without the consent of an Award recipient, adversely affect such
Award recipient's rights under any Award Agreement unless such Agreement so
specifies. With the consent of the Award recipient affected, the Board of
Directors may amend outstanding Award Agreements in a manner not inconsistent
with this Plan. The Board of Directors shall have the right to amend or modify
the terms and provisions of this Plan and of any outstanding Incentive Stock
Options granted under this Plan to the extent necessary to qualify any or all
such Options for such favorable Federal income tax treatment (including deferral
of taxation upon exercise) as may be afforded incentive stock options under
Section 422 of the Code.
16. Withholding.
The Company's obligation to deliver Restricted Shares awarded, or shares deliverable upon the exercise of any Option granted, under this Plan shall be subject to the Award recipient's satisfaction of all applicable Federal, State and local income and employment tax withholding requirements, and the Award recipient shall elect to withhold only the minimum statutory taxes.
17. Duration of this Plan.
Unless earlier terminated by the Board of Directors, this Plan shall
terminate upon the earlier of (i) the close of business on April 22, 2012 or
(ii) the date on which all shares available for issuance under this Plan shall
have been issued as Restricted Shares or pursuant to the exercise of Options
granted under this Plan and/or are no longer subject to forfeiture pursuant to
the terms of any applicable Award Agreement. If the date of termination is
determined under
(i) above, then Awards outstanding on such date shall continue to have force and effect in accordance with the provisions of the Award Agreements evidencing such Awards.
Adopted on April 22, 2002 by the Board of Directors and approved by stockholders on July 30, 2002.
THE FOLLOWING RESOLUTIONS WERE ADOPTED AT A MEETING OF THE BOARD OF DIRECTORS OF AMICUS THERAPEUTICS, INC. ON FEBRUARY 28, 2006:
Stock Option Plan
RESOLVED, that the Company's 2002 Equity Incentive Plan (the "Plan") be amended by increasing the number of shares of Common Stock issuable under the Plan to employees, officers, directors, consultants and agents of the Company to 17,500,000 shares; and be it further
RESOLVED, that the Company hereby reserve a total of 17,500,000 shares of Common Stock for issuance under the Plan; and be it further
AMICUS THERAPEUTICS, INC.
AMENDMENT TO
2002 EQUITY INCENTIVE PLAN
AUGUST 2006
The 2002 Equity Incentive Plan of Amicus Therapeutics, Inc., as amended (the "Plan"), shall be further amended as set forth herein. Except to the extent specifically amended as set forth herein, the Plan shall remain in full force and effect. All capitalized terms used herein without definition shall have the definitions for such terms as set forth in the Plan.
1. Section 3 of the Plan is amended by adding the following sentence at the end of the paragraph:
"Further, in no event shall the number of shares of Common Stock covered by Awards granted to any one person in any one calendar year (or portion of a year) ending after such date exceed twenty-five percent (25%) of the aggregate number of shares of Common Stock subject to this Plan."
2. As amended in February 2006, the first sentence of Section 4 of the Plan now reads as follows (based upon the capitalization of the Company as of May 8, 2006):
"Subject to adjustment as provided in Sections 10 and 11 hereof, the maximum number of shares of Common Stock of the Company which may be issued and sold pursuant to Awards (including pursuant to Incentive Stock Options) made under this Plan is 17,500,000 shares." (emphasis added)
3. Section 6 of the Plan is amended by adding the following phrase at the end of the last sentence thereof:
"or, if no closing price is reported for that date, the closing price on the next preceding date for which a closing price was reported."
4. Section 9 of the Plan is amended by adding the following provisions after subsection (b) thereof:
"(c) Violation of Law. Notwithstanding any other provision of the Plan or the relevant Award Agreement, if, at any time, in the reasonable opinion of the Company, the issuance of shares of Common Stock covered by an Award may constitute a violation of law, then the Company may delay such issuance and the delivery of a certificate for such shares until (i) approval shall have been obtained from such governmental agencies, other than the Securities and Exchange Commission, as may be required under any applicable law, rule, or regulation and (ii) in the case where such issuance would constitute a violation of a law
administered by or a regulation of the Securities and Exchange Commission, one of the following conditions shall have been satisfied:
(A) the shares are at the time of the issue of such shares effectively registered under the Securities Act; or
(B) the Company shall have determined, on such basis as it deems appropriate (including an opinion of counsel in form and substance satisfactory to the Company) that the sale, transfer, assignment, pledge, encumbrance or other disposition of such shares or such beneficial interest, as the case may be, does not require registration under the Securities Act or any applicable state securities laws.
(d) Corporate Restrictions on Rights in Stock. Any Common Stock to be issued pursuant to Awards granted under the Plan shall be subject to all restrictions upon the transfer thereof which may be now or hereafter imposed by the Certificate of Incorporation and the By-laws of the Company, each as amended and in effect from time to time. Whenever Common Stock is to be issued pursuant to an Award, if the Committee so directs at the time of grant (or, if such Award is an Option, at any time prior to the exercise thereof), the Company shall be under no obligation, notwithstanding any other provision of the Plan or the relevant Award Agreement to the contrary, to issue such shares until such time, if ever, as the recipient of the Award (and any person who exercises any Option, in whole or in part), shall have become a party to and bound by any agreement that the Committee shall require in its sole discretion. In addition, any Common Stock to be issued pursuant to Awards granted under the Plan shall be subject to all stop-transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations and other requirements of any stock exchange upon which the Common Stock is then listed, and any applicable federal or state securities laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
(e) Investment Representations. The Company shall be under no obligation to issue any shares covered by an Award unless the shares to be issued pursuant to Awards granted under the Plan have been effectively registered under the Securities Act or the holder of such Award shall have made such written representations to the Company (upon which the Company believes it may reasonably rely) as the Company may deem necessary or appropriate for purposes of confirming that the issuance of such shares will be exempt from the registration requirements of that Act and any applicable state securities laws and otherwise in compliance with all applicable laws, rules and regulations, including but not limited to that the holder of such Award is acquiring shares for his or her own account for the purpose of investment and not with a view to, or for sale in connection with, the distribution of any such shares.
(f) Registration. If the Company shall deem it necessary or desirable to register under the Securities Act or other applicable statutes any shares of Common Stock issued or to be issued pursuant to Awards granted under the Plan, or to qualify any such shares of Common Stock for exemption from the Securities Act or other applicable statutes, then the Company shall take such action at its own expense. The Company may require from each recipient of an
Award, or each holder of shares of Common Stock acquired pursuant to the Plan, such information in writing for use in any registration statement, prospectus, preliminary prospectus or offering circular as is reasonably necessary for such purpose and may require reasonable indemnity to the Company and its officers and directors from such holder against all losses, claims, damage and liabilities arising from such use of the information so furnished and caused by any untrue statement of any material fact therein or caused by the omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(g) Lock-Up. Without the prior written consent of the Company or the managing underwriter in any public offering of shares of Common Stock, no holder of an Award shall sell, make any short sale of, loan, grant any option for the purchase of, pledge or otherwise encumber, or otherwise dispose of, any shares of Common Stock during the one hundred-eighty (180) day period commencing on the effective date of the registration statement relating to any underwritten public offering of securities of the Company. The foregoing restrictions are intended and shall be construed so as to preclude any holder of an Award from engaging in any hedging or other transaction that is designed to or reasonably could be expected to lead to or result in, a sale or disposition of any shares of Common Stock during such period even if such shares of Common Stock are or would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any shares of Common Stock or with respect to any security that includes, relates to, or derives any significant part of its value from any shares of Common Stock. Without limiting the generality of the foregoing provisions of this Section 9.5, if, in connection with any underwritten public offering of securities of the Company, the managing underwriter of such offering requires that the Company's directors and officers enter into a lock-up agreement containing provisions that are more restrictive than the provisions set forth in the preceding sentence, then (a) each holder (regardless of whether or not such holder has complied or complies with the provisions of clause (b) below) shall be bound by, and shall be deemed to have agreed to, the same lock-up terms as those to which the Company's directors and officers are required to adhere; and (b) at the request of the Company or such managing underwriter, each holder shall execute and deliver a lock-up agreement in form and substance equivalent to that which is required to be executed by the Company's directors and officers.
(h) Placement of Legends; Stop Orders; Etc. Each share of Common Stock to be issued pursuant to Awards granted under the Plan may bear a reference to the investment representations made in accordance with Section 9.3 in addition to any other applicable restrictions under the Plan, the terms of the Award and, if applicable, under any agreement between the Company and any Optionee and/or holder, and to the fact that no registration statement has been filed with the Securities and Exchange Commission in respect to such shares of Common Stock. All certificates for shares of Common Stock or other securities delivered under the Plan shall be subject to such stock transfer orders and other restrictions as the Committee may deem advisable under the rules, regulations, and other
requirements of any stock exchange upon which the Common Stock is then listed, and any applicable federal or state securities law, and the Committee may cause a legend or legends to be placed on any such certificates to make appropriate reference to such restrictions.
(i) Tax Withholding. Whenever shares of Common Stock are issued or to be issued pursuant to Awards granted under the Plan, the Company shall have the right to require the recipient to remit to the Company an amount sufficient to satisfy federal, state, local or other withholding tax requirements if, when, and to the extent required by law (whether so required to secure for the Company an otherwise available tax deduction or otherwise) prior to the delivery of any certificate or certificates for such shares. The obligations of the Company under the Plan shall be conditional on satisfaction of all such withholding obligations and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the recipient of an Award. However, in such cases holders may elect, subject to approval of the Committee, acting in its sole discretion, to satisfy an applicable withholding requirement, in whole or in part, by having the Company withhold shares to satisfy their tax obligations.
5. Section 15 of the Plan is amended by adding the following sentence after the second sentence thereof:
"Subject to the foregoing, this Plan may be terminated, amended or modified by the board of directors, and such termination, amendment and/or modification shall apply to and govern each then outstanding Award under this Plan."
THE FOLLOWING RESOLUTIONS WERE ADOPTED BY WRITTEN CONSENT OF THE BOARD OF DIRECTORS OF AMICUS THERAPEUTICS, INC. ON SEPTEMBER 13, 2006:
Amendment of 2002 Equity Incentive Plan
RESOLVED, that effective upon the initial closing of the transactions contemplated by the Transaction Documents (the "Initial Closing"), the 2002 Equity Incentive Plan (the "Plan") is hereby amended to increase the number of shares of Common Stock available for issuance thereunder to 20,500,000 shares of Common Stock; and be it further
RESOLVED, that the Designated Officers be, and each hereby is, authorized and directed to solicit and obtain the approval of the stockholders to such amendment of the Plan, and to take such further actions as are necessary to effect the amendment to the Plan; and be it further
RESOLVED, that the Company hereby reserves a total of 20,500,000 shares of Common Stock for issuance under the Plan; and be it further
AMICUS THERAPEUTICS, INC.
FOURTH AMENDMENT
TO
2002 EQUITY INCENTIVE PLAN
This Fourth Amendment ("Fourth Amendment") to the 2002 Equity Incentive Plan (the "Plan") of Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), was adopted at by the Board of Directors of the Company at a meeting on April 25, 2007 and shall be effective as of April 25, 2007.
1. AMENDMENT TO SECTION 4 OF THE PLAN.
Section 4 of the Plan is hereby amended by deleting the number "20,500,000" appearing in the first sentence thereof and substituting in lieu thereof the number "23,760,000."
2. RATIFICATION, ETC.
Except as expressly set forth above, all of the terms, provisions and conditions of the Plan are hereby ratified and confirmed and shall remain in full force and effect and all references to the Plan shall hereinafter be deemed to be references to the Plan as amended by this Fourth Amendment.
* * *
AMICUS THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
1. Grant of Option. Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), hereby grants to _______________ (the "Associate"), an option (the "Option"), pursuant to the Company's 2002 Equity Incentive Plan (the "Plan"), to purchase up to an aggregate of _________ (the "Shares") of Common Stock, $0.01 par value ("Common Stock"), of the Company at a price of $_______ per Share (the "Exercise Price"), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
2. Incentive Stock Option. The Option is intended to qualify as an
incentive stock option ("Incentive Stock Option") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
3. Exercise of Option and Provisions for Termination.
(a) Exercisability of Option. The Option shall become exercisable as follows: _____ shares shall vest and become exercisable on the first anniversary (the "Anniversary Date") of the Associate's initial date of employment as set forth on the signature page hereof. The remaining shares shall vest and become exercisable in equal monthly installments of ____ shares on the first day of each of the next 35 calendar months, beginning on the first day of the calendar month next following the Anniversary Date, and ______ shares shall vest and become exercisable on _________, 201_. The periods of time following the Associate's cessation of service, death or disability, during which the Option remains outstanding as provided in subsections (e) and (f) below, shall not be included for purposes of determining the exercisability of the Option under this subsection (a).
(b) Expiration Date. Except as otherwise provided in this Agreement, the Option may not be exercised after the date (hereinafter the "Expiration Date") that is the tenth anniversary of the date of grant set forth on the signature page hereof (the "Date of Grant") or, if the Associate is a "10% Shareholder" as described in Section 11(b) of the Plan, the fifth anniversary of the Date of Grant.
(c) Exercise Procedure. Subject to the conditions set forth in this Agreement, the Option shall be exercised by the Associate's delivery of written notice of exercise to the Company's Vice President of Human Resources and Leadership
Development (the "VP HR"), specifying the number of Shares to be purchased and the aggregate Exercise Price to be paid therefor, accompanied by payment in full in accordance with Section 4. Such exercise shall be effective upon receipt by the VP HR of such written notice together with the required payment. The Associate may purchase less than the total number of Shares covered hereby, provided that no partial exercise of the Option may be for any fractional Share or for less than ten whole Shares.
(d) Continuous Employment Required. Except as otherwise provided in this Section 3, the Option may not be exercised unless the Associate, at the time he or she exercises the Option, is, and has been at all times since the Date of Grant of the Option, an employee of one or more of the Company, a Parent Corporation or a Subsidiary (as such terms are defined in the Plan). For all purposes of this Agreement, (i) "employment" shall be defined in accordance with the provisions of Section 1.421-7(h) of the Income Tax Regulations or any successor regulations, and (ii) if the Option shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by such assuming or substituting corporation (hereinafter called the "Successor Corporation") or by a Parent Corporation or a Subsidiary thereof (as defined in the Plan, respectively, but with the Successor Corporation substituted for the Company in such definitions) shall be considered for all purposes of this Agreement to be employment by the Company, a Parent Corporation or a Subsidiary, as the case may be.
(e) Termination of Employment. If the Associate ceases to be employed by the Company, a Parent Corporation or Subsidiary for any reason other than death or disability or a discharge for "cause", the right to exercise the Option shall terminate three months after such cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. If the Associate dies or becomes disabled (within the meaning of Section 22(e) (3) of the Code) prior to the Expiration Date, while he or she is an employee of the Company, a Parent Corporation or a Subsidiary, or if the Associate dies within three months after the Associate ceases to be an employee of any of the foregoing entities (other than as the result of a discharge for "cause" as specified in subsection (g) below), the Option shall be exercisable, within the period of one year following the date of death or disability of the Associate (but in no event after the Expiration Date), by the Associate, the Associate's legal representative (in the event of legal incapacity) or by the person to whom the Option is transferred by will or the laws of descent and distribution. Except as otherwise indicated by the context, the term "Associate", as used in this Agreement, shall be deemed to include the estate of the Associate, or any person who acquirers the right to exercise the Option by bequest or inheritance or otherwise by reason of the death of the Associate.
(g) Discharge for Cause. If the Associate, prior to the Expiration Date, ceases his or her employment with the Company, a Parent Corporation or a Subsidiary because he or she is discharged for "cause" (as defined below), the right to exercise the
Option shall terminate immediately upon such cessation of employment. "Cause" shall mean willful misconduct in connection with the Associate's employment or willful failure to perform his or her employment responsibilities in the best interests of his or her employer, as determined by the Company, which determination shall be conclusive.
4. Payment of Exercise Price. Payment of the aggregate Exercise Price for Shares purchased upon exercise of the Option shall be made by delivery to the Company of cash or a check to the order of the Company.
5. Delivery of Shares. The Company shall, upon payment of the aggregate Exercise Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Associate, provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of delivery of such Shares shall be extended for the period necessary to complete such action. No Shares shall be issued and delivered upon exercise of the Option unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with.
6. Non-transferability of Option. Except as provided in subsection (f) of
Section 3, or as otherwise agreed to by the Board of Directors or the
Compensation Committee of the Board of Directors, the Option is personal and no
rights granted hereunder may be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) nor shall any such rights
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall, at the election of the Company, become null and void.
7. No Special Employment Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any person under any circumstances to bind the Company or any Parent Corporation or Subsidiary to continue the employment of the Associate for the period within which the Option may be exercised. Moreover, during the period of the Associate's employment, the Associate shall render diligently and faithfully the services which are assigned to the Associate from time to time by the Board of Directors or by the executive officers of the Company or any Parent Corporation or Subsidiary and shall at no time take any action which directly or indirectly would be inconsistent with the best interests of the foregoing entities.
8. Rights as a Shareholder. The Associate shall have no rights as a Shareholder with respect to any Shares which may be purchased by exercise of the Option unless and until a certificate representing such Shares is duly issued and delivered to the Associate. No adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued except as provided for in Sections 9 or 10 of this Agreement.
9. Recapitalization. In the event that the outstanding shares of Common Stock of the Company are changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, stock dividend, combination or subdivision, appropriate adjustment shall be made in the number and kind of Shares to which the Option shall be exercisable. Such adjustment to the Option shall be made without change in the total price applicable to the unexercised portion of the Option, and a corresponding adjustment in the Exercise Price per Share shall be made. No such adjustment shall be made which would, within the meaning of any applicable provisions of the Code, constitute a modification, extension or renewal of the Option or a grant of additional benefits to the Associate.
10. Reorganization of the Company. In case (i) the Company is merged or
consolidated with another corporation and the Company is not the surviving
corporation, (ii) all or substantially all of the assets or more than 50% of the
outstanding voting stock of the Company is acquired by any other corporation or
(iii) the Company is reorganized or liquidated prior to the Expiration Date, the
Board of Directors of the Company, or the board of directors of any corporation
assuming the obligations of the Company, shall, as to the Option, either (x)
make appropriate provision for the protection of the Option by the substitution
on an equitable basis of appropriate stock of the Company, or of the merged,
consolidated or otherwise reorganized corporation which will be issuable in
respect of the shares of Common Stock of the Company, provided that no
additional benefits shall be conferred upon the Associate as a result of such
substitution, and the excess of the aggregate fair market value of the Shares
subject to the Option immediately after such substitution over the purchase
price thereof is not more than the excess of the aggregate fair market value of
the Shares subject to the Option immediately before such substitution over the
purchase price thereof, or (y) upon written notice to the Associate, provide
that the Option must be exercised within a specified number of days of the date
of such notice or they will be terminated. In any such case, the Board of
Directors may, in its discretion, accelerate the exercise dates of the Option.
11. Withholding Taxes. The Company's obligation to deliver Shares upon the exercise of the Option shall be subject to the Associate's satisfaction of all applicable federal, state and local income and employment tax withholding requirements.
12. Investment Representations; Legend.
(a) Representations. As of the time of any exercise of the Option, the Associate represents, warrants and covenants to the Company that:
(i) Any Shares purchased upon exercise of the Option shall be acquired for the Associate's account for investment only and not with a view to, or for
sale in connection with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation thereunder.
(ii) The Associate has had such opportunity as he or she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Associate to evaluate the merits and risks of an investment in the Company.
(iii) The Associate is able to bear the economic risk of holding such Shares for an indefinite period.
(iv) The Associate understands that (A) the Shares will not be
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; (B) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(C) in any event, the exemption from registration under Rule 144 will not be
available for at least one year and even then will not be available unless a
public market then exists for the Company's Common Stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (D) the Company has no obligation
or current intention to register any Shares acquired pursuant to the exercise of
the Option under the Securities Act.
(b) Tax Consequences. The Associate hereby represents that the Associate has obtained appropriate legal or tax advice with respect to the tax consequences to the Associate of exercising the Option and selling the Shares.
(c) Legend on Stock Certificates. All stock certificates representing Shares issued to the Associate upon exercise of the Option shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL AND RESTRICTIONS ON
RESALE CONTAINED IN A STOCK OPTION AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
By making payment upon exercise of the Option, the Associate shall be deemed to have reaffirmed, as of the date of such payment, the representations made in this Section 12.
13. Limitations on Dispositions of Incentive Stock Options.
(a) Prohibitions on Sales of Shares. It is understood and intended that the Option shall qualify as an Incentive Stock Option. Accordingly, the Associate understands that in order to obtain the benefits of an incentive stock option under Section 421 of the Code, no sale or other disposition may be made of any Shares acquired upon exercise of the Option within the one year period beginning on the day after the day of the transfer of such Shares to him or her, nor within the two-year period beginning on the day after the date of this Agreement. If the Associate intends to dispose or does dispose (whether by sale, exchange, gift, transfer or otherwise) of any such Shares within said periods, he or she will notify the Company in writing within ten days after such disposition.
(b) Maximum Number of Incentive Stock Options Exercisable During One Year. To the extent that the aggregate fair market value (determined as of the time an option is granted pursuant to the Plan) of Common Stock with respect to which an option becomes exercisable for the first time by the Associate during any calendar year under the Plan and all similar plans maintained by the Company exceeds $100,000.00, options for such Common Stock shall be treated as options that are not Incentive Stock Options. For purposes of this provision, Options shall be taken into account in the order in which they were granted.
14. Right of First Refusal. If the Associate wishes to sell or otherwise transfer any of the Shares, then at least 30 days prior to any such transfer, the Associate shall give notice to the Company (the "Notice"). The Notice shall set forth (i) the number of Shares proposed to be sold or transferred; (ii) the date or proposed date of the sale or transfer; (iii) the identity of the proposed transferee; and (iv) the principal terms of the transfer, including the cash or other property or consideration to be received upon such transfer. The Company shall have the right, but not the obligation, to purchase all, but not less than all, of the Shares on the same terms specified in the Notice. Within 30 days after receipt of the Notice, the Company shall give written notice (the "Company Notice") to the Associate stating whether or not it elects to exercise its right to purchase the Shares and a date and time for consummation of such purchase, not more than 10 days after the receipt by the Associate of the Company Notice. Failure by the Company to deliver a Company Notice within such time period shall be deemed an election by the Company not to exercise its right to purchase the Shares. If the Company does not exercise its right
to purchase the Shares, then the Associate shall be free to transfer the Shares on the terms provided in the Notice. Any Shares not purchased within a period of 90 days of the Notice by the proposed transferee in the Notice may not be sold or otherwise disposed of until they are again offered to the Company under the procedures specified in this Section 14. The Company's right of first refusal described in this Section 14 shall terminate upon the closing of an initial public offering of the Company's Common Stock.
15. Restrictions on Public Sale by Associate. In connection with any
public offering, the Associate, if requested by the Company and the underwriters
managing such public offering, shall agree not to sell or otherwise transfer or
dispose of any Shares or other securities of the Company held by the Associate
(other than those Shares or other securities, if any, included in the public
offering) for a specified period of time determined by the Company and the
underwriters following the effective date of a registration statement with the
Securities and Exchange Commission covering such public offering (the
"Registration Statement"); provided, however, that: (i) such agreement shall not
exceed 180 days from the effective date of such registration; (ii) all other
Restricted Holders enter into similar agreements; provided, however, that all
restrictions set forth in this Section 15 shall terminate and be of no further
force or effect if any other Restricted Holder is released from, or otherwise no
longer bound by, such restrictions; and (iii) such agreement shall only apply to
the first such Registration Statement covering Common Stock of the Company to be
sold on its behalf to the public in an initial public offering of securities by
the Company. For purposes of this Section 15, "Restricted Holders" shall mean:
(x) parties to that certain Third Amended and Restated Investor Rights
Agreement, dated September 13, 2006, by and among the Company and the
stockholders named therein, and (y) any officer or director of the Company.
16. Miscellaneous.
(a) This Agreement and any instruments delivered pursuant to this Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
(b) Any claim or controversy arising out of, or relating to, this Agreement, other than with respect to any confidentiality agreement between Associate and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New
Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any Court having jurisdiction thereof.
(c) This Agreement shall extend to, be binding upon and inure to the benefit of the Associate, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Option or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Agreement shall be valid unless in writing and signed by both parties.
(e) The waiver of any breach of any duty, term or condition of this Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Agreement.
(f) All notices pursuant to this Agreement will be in writing and will be sent by personal delivery, telecopier, electronic mail or by prepaid registered or certified mail, return receipt requested, addressed to the parties hereto at the addresses set forth beneath their names on the signature page hereto or to such other addresses as may hereafter be specified by like notice in writing by either of the parties, and will be deemed given (i) upon receipt if by personal delivery, (ii) on the day on which delivered if delivered by telecopier (with confirmation of receipt (such receipt to be established by acceptable protocol)), (iii) upon mailing if sent by registered or certified mail or (iv) when transmitted if delivered by electronic mail (with satisfactory evidence of transmittal (such evidence of transmittal to be established by acceptable protocol)). Copies of all notices shall be sent to: Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512 Attention: VP, Human Resources and Leadership Development, Telecopier No.609-662-2004.
(g) The headings of the sections of this Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.
Date of Grant: Amicus Therapeutics, Inc. - ______, 200_ By: ----------------------------------- Name: John F. Crowley Initial Date of Title: President & CEO Employment: - ____________, 200_ Address: 6 Cedar Brook Drive Cranbury, NJ 08512 |
ASSOCIATE'S ACCEPTANCE
The undersigned hereby accepts the foregoing Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
ASSOCIATE
----------------------------------------- Name: - Address: - SSN#: - |
AMICUS THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
1. Grant of Option. Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), hereby grants to _______ (the "Associate"), an option (the "Option"), pursuant to the Company's 2002 Equity Incentive Plan (the "Plan"), to purchase up to an aggregate of _______ shares (the "Shares") of Common Stock, $0.01 par value ("Common Stock"), of the Company at a price of $______ per Share (the "Exercise Price"), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
2. Incentive Stock Option. The Option is intended to qualify as an incentive stock option ("Incentive Stock Option") within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
3. Exercise of Option and Provisions for Termination.
(a) Exercisability of Option. The Option shall become exercisable as follows: ______ shares shall vest and become exercisable on the first anniversary (the "Anniversary Date") of the date of grant set forth on the signature page hereof (the "Date of Grant"). The remaining shares shall vest and become exercisable in equal monthly installments of ____ shares on the first day of each of the next 35 calendar months, beginning on the first day of the calendar month next following the Anniversary Date, and ______ shares shall vest and become exercisable on _______________. The periods of time following the Associate's cessation of service, death or disability, during which the Option remains outstanding as provided in subsections (e) and (f) below, shall not be included for purposes of determining the exercisability of the Option under this subsection (a).
(b) Expiration Date. Except as otherwise provided in this Agreement, the Option may not be exercised after the date (hereinafter the "Expiration Date") that is the tenth anniversary of the Date of Grant or, if the Associate is a "10% Shareholder" as described in Section 11(b) of the Plan, the fifth anniversary of the Date of Grant.
(c) Exercise Procedure. Subject to the conditions set forth in this Agreement, the Option shall be exercised by the Associate's delivery of written notice of exercise to the Company's VP of Human Resources and Leadership Development (the "VP HR"), specifying the number of Shares to be purchased and the aggregate Exercise Price to be paid therefor, accompanied by payment in full in accordance with Section 4. Such exercise shall be effective upon receipt by the VP HR of such written notice together with the required payment. The Associate may purchase less than the total number of Shares covered hereby, provided that no partial exercise of the Option may be for any fractional Share or for less than ten whole Shares.
(d) Continuous Employment Required. Except as otherwise provided in this Section 3, the Option may not be exercised unless the Associate, at the time he or she exercises the Option, is, and has been at all times since the Date of Grant of the Option, an employee of one or more of the Company, a Parent Corporation or a Subsidiary (as such terms are defined in the Plan). For all purposes of this Agreement, (i) "employment" shall be defined in accordance with the provisions of Section 1.421-7(h) of the Income Tax Regulations or any successor regulations, and (ii) if the Option shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by such assuming or substituting corporation (hereinafter called the "Successor Corporation") or by a Parent Corporation or a Subsidiary thereof (as defined in the Plan, respectively, but with the Successor Corporation substituted for the Company in such definitions) shall be considered for all purposes of this Agreement to be employment by the Company, a Parent Corporation or a Subsidiary, as the case may be.
(e) Termination of Employment. If the Associate ceases to be employed by the Company, a Parent Corporation or Subsidiary for any reason other than death or disability or a discharge for "cause", the right to exercise the Option shall terminate three months after such cessation (but in no event after the Expiration Date).
(f) Exercise Period Upon Death or Disability. If the Associate dies or becomes disabled (within the meaning of Section 22(e) (3) of the Code) prior to the Expiration Date, while he or she is an employee of the Company, a Parent Corporation or a Subsidiary, or if the Associate dies within three months after the Associate ceases to be an employee of any of the foregoing entities (other than as the result of a discharge for "cause" as specified in subsection (g) below), the Option shall be exercisable, within the period of one year following the date of death or disability of the Associate (but in no event after the Expiration Date), by the Associate, the Associate's legal representative (in the event of legal incapacity) or by the person to whom the Option is transferred by will or the laws of descent and distribution. Except as otherwise indicated by the context, the term "Associate", as used in this Agreement, shall be deemed to include the estate of the Associate, or any person who acquirers the right to exercise the Option by bequest or inheritance or otherwise by reason of the death of the Associate.
(g) Discharge for Cause. If the Associate, prior to the Expiration Date, ceases his or her employment with the Company, a Parent Corporation or a Subsidiary because he or she is discharged for "cause" (as defined below), the right to exercise the Option shall terminate immediately upon such cessation of employment. "Cause" shall mean willful misconduct in connection with the Associate's employment or willful failure to perform his or her employment responsibilities in the best interests of his or her employer, as determined by the Company, which determination shall be conclusive.
4. Payment of Exercise Price. Payment of the aggregate Exercise Price for Shares purchased upon exercise of the Option shall be made by delivery to the Company of cash or a check to the order of the Company.
5. Delivery of Shares. The Company shall, upon payment of the aggregate Exercise Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Associate, provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of delivery of such Shares shall be extended for the period necessary to complete such action. No Shares shall be issued and delivered upon exercise of the Option unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with.
6. Non-transferability of Option. Except as provided in subsection (f) of
Section 3, or as otherwise agreed to by the Board of Directors or the
Compensation Committee of the Board of Directors, the Option is personal and no
rights granted hereunder may be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) nor shall any such rights
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall, at the election of the Company, become null and void.
7. No Special Employment Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any person under any circumstances to bind the Company or any Parent Corporation or Subsidiary to continue the employment of the Associate for the period within which the Option may be exercised. Moreover, during the period of the Associate's employment, the Associate shall render diligently and faithfully the services which are assigned to the Associate from time to time by the Board of Directors or by the executive officers of the Company or any Parent Corporation or Subsidiary and shall at no time take any action which directly or indirectly would be inconsistent with the best interests of the foregoing entities.
8. Rights as a Shareholder. The Associate shall have no rights as a Shareholder with respect to any Shares which may be purchased by exercise of the Option unless and until a certificate representing such Shares is duly issued and delivered to the Associate. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued except as provided for in Sections 9 or 10 of this Agreement.
9. Recapitalization. In the event that the outstanding shares of Common Stock of the Company are changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, stock dividend, combination or subdivision, appropriate adjustment shall be made in the number and kind of Shares to which the Option shall be exercisable. Such adjustment to the Option shall be made without change in the total price applicable to the unexercised portion of the Option, and a corresponding adjustment in the Exercise Price per Share shall be made. No such adjustment shall be made which would, within the meaning of any applicable provisions of the Code, constitute a modification, extension or renewal of the Option or a grant of additional benefits to the Associate.
10. Reorganization of the Company. In case (i) the Company is merged or
consolidated with another corporation and the Company is not the surviving
corporation, (ii) all or substantially all of the assets or more than 50% of the
outstanding voting stock of the Company is acquired by any other corporation or
(iii) the Company is reorganized or liquidated prior to the Expiration Date, the
Board of Directors of the Company, or the board of directors of any corporation
assuming the obligations of the Company, shall, as to the Option, either (x)
make appropriate provision for the protection of the Option by the substitution
on an equitable basis of appropriate stock of the Company, or of the merged,
consolidated or otherwise reorganized corporation which will be issuable in
respect of the shares of Common Stock of the Company, provided that no
additional benefits shall be conferred upon the Associate as a result of such
substitution, and the excess of the aggregate fair market value of the Shares
subject to the Option immediately after such substitution over the purchase
price thereof is not more than the excess of the aggregate fair market value of
the Shares subject to the Option immediately before such substitution over the
purchase price thereof, or (y) upon written notice to the Associate, provide
that the Option must be exercised within a specified number of days of the date
of such notice or they will be terminated. In any such case, the Board of
Directors may, in its discretion, accelerate the exercise dates of the Option.
11. Withholding Taxes. The Company's obligation to deliver Shares upon the exercise of the Option shall be subject to the Associate's satisfaction of all applicable federal, state and local income and employment tax withholding requirements.
12. Investment Representations; Legend.
(a) Representations. As of the time of any exercise of the Option, the Associate represents, warrants and covenants to the Company that:
(i) Any Shares purchased upon exercise of the Option shall be acquired for the Associate's account for investment only and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation thereunder.
(ii) The Associate has had such opportunity as he or she has deemed adequate to obtain from representatives of the Company such information as is
necessary to permit the Associate to evaluate the merits and risks of an investment in the Company.
(iii) The Associate is able to bear the economic risk of holding such Shares for an indefinite period.
(iv) The Associate understands that (A) the Shares will not be
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; (B) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(C) in any event, the exemption from registration under Rule 144 will not be
available for at least one year and even then will not be available unless a
public market then exists for the Company's Common Stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (D) the Company has no obligation
or current intention to register any Shares acquired pursuant to the exercise of
the Option under the Securities Act.
(b) Tax Consequences. The Associate hereby represents that the Associate has obtained appropriate legal or tax advice with respect to the tax consequences to the Associate of exercising the Option and selling the Shares.
(c) Legend on Stock Certificates. All stock certificates representing Shares issued to the Associate upon exercise of the Option shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL CONTAINED IN A STOCK OPTION AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
By making payment upon exercise of the Option, the Associate shall be deemed to have reaffirmed, as of the date of such payment, the representations made in this Section 12.
13. Limitations on Dispositions of Incentive Stock Options.
(a) Prohibitions on Sales of Shares. It is understood and intended that the Option shall qualify as an Incentive Stock Option. Accordingly, the Associate understands that in order to obtain the benefits of an incentive stock option under Section 421 of the Code, no sale or other disposition may be made of any Shares acquired upon exercise of the Option within the one year period beginning on the day after the day of the transfer of such Shares to him or her, nor within the two-year period beginning on the day after the date of this Agreement. If the Associate intends to dispose or does dispose (whether by sale, exchange, gift, transfer or otherwise) of any such Shares within said periods, he or she will notify the Company in writing within ten days after such disposition.
(b) Maximum Number of Incentive Stock Options Exercisable During One Year. To the extent that the aggregate fair market value (determined as of the time an option is granted pursuant to the Plan) of Common Stock with respect to which an option becomes exercisable for the first time by the Associate during any calendar year under the Plan and all similar plans maintained by the Company exceeds $100,000.00, options for such Common Stock shall be treated as options that are not Incentive Stock Options. For purposes of this provision, Options shall be taken into account in the order in which they were granted.
14. Right of First Refusal. If the Associate wishes to sell or otherwise transfer any of the Shares, then at least 30 days prior to any such transfer, the Associate shall give notice to the Company (the "Notice"). The Notice shall set forth (i) the number of Shares proposed to be sold or transferred; (ii) the date or proposed date of the sale or transfer; (iii) the identity of the proposed transferee; and (iv) the principal terms of the transfer, including the cash or other property or consideration to be received upon such transfer. The Company shall have the right, but not the obligation, to purchase all, but not less than all, of the Shares on the same terms specified in the Notice. Within 30 days after receipt of the Notice, the Company shall give written notice (the "Company Notice") to the Associate stating whether or not it elects to exercise its right to purchase the Shares and a date and time for consummation of such purchase, not more than 10 days after the receipt by the Associate of the Company Notice. Failure by the Company to deliver a Company Notice within such time period shall be deemed an election by the Company not to exercise its right to purchase the Shares. If the Company does not exercise its right to purchase the Shares, then the Associate shall be free to transfer the Shares on the terms provided in the Notice. Any Shares not purchased within a period of 90 days of the Notice by the proposed transferee in the Notice may not be sold or otherwise disposed of until they are again offered to the Company under the procedures specified in this Section
14. The Company's right of first refusal described in this Section 14 shall terminate upon the closing of an initial public offering of the Company's Common Stock.
15. Miscellaneous.
(a) This Agreement and any instruments delivered pursuant to this Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
(b) Any claim or controversy arising out of, or relating to, this Agreement, other than with respect to any confidentiality agreement between Associate and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any Court having jurisdiction thereof.
(c) This Agreement shall extend to, be binding upon and inure to the benefit of the Associate, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Option or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Agreement shall be valid unless in writing and signed by both parties.
(e) The waiver of any breach of any duty, term or condition of this Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Agreement.
(f) All notices pursuant to this Agreement will be in writing and will be sent by personal delivery, telecopier, electronic mail or by prepaid registered or certified mail, return receipt requested, addressed to the parties hereto at the addresses set forth beneath their names on the signature page hereto or to such other addresses as may hereafter be specified by like notice in writing by either of the parties, and will be deemed given (i) upon receipt if by personal delivery, (ii) on the day on which delivered if delivered by telecopier (with confirmation of receipt (such receipt to be established by acceptable protocol)), (iii) upon mailing if sent by registered or certified mail or (iv) when transmitted if delivered by electronic mail (with satisfactory evidence of transmittal (such evidence of transmittal to be established by acceptable protocol)). Copies of all notices shall be sent to: Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512 Attention: VP, Human Resources and Leadership Development, Telecopier No.609-662-2004.
(g) The headings of the sections of this Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.
Date of Grant: Amicus Therapeutics, Inc. - By: ---------- ------------------------------------- Name: John F. Crowley Title: Chairman & CEO Address: 6 Cedar Brook Drive Cranbury, NJ 08512 |
ASSOCIATE'S ACCEPTANCE
The undersigned hereby accepts the foregoing Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
ASSOCIATE
---------------------------------------- Name: - Address: - SSN#: - |
EXECUTION COPY |
AMICUS THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
1. Grant of Option. Amicus Therapeutics, Inc., a Delaware
corporation (the "Company"), hereby grants to NAME (the "Associate"), an
option (the "Option"), pursuant to the Company's 2002 Equity Incentive Plan
(the "Plan"), to purchase up to an aggregate of #SHARES shares (the "Shares")
of Common Stock, $.01 par value ("Common Stock"), of the Company at a price
of $PRICE per Share (the "Exercise Price"), purchasable as set forth in and
subject to the terms and conditions of this Agreement and the Plan.
2. Incentive Stock Option. The Option is intended to qualify
as an incentive stock option ("Incentive Stock Option") within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
3. Exercise of Option and Provisions for Termination.
(a) Exercisability of Option. Unless otherwise provided in this Section 3, the Option shall vest and become exercisable as set forth in the following schedule:
Vesting Date Number of Shares ------------ ---------------- DATE (the "Anniversary Date") # Each monthly anniversary of # the Anniversary Date, beginning on DATE through DATE DATE # |
The periods of time following the Associate's cessation of service, death or disability, during which the Option remains outstanding as provided in subsections (g) and (h) below, shall not be included for purposes of determining the exercisability of the Option under this subsection (a).
(b) Acceleration of Vesting.
(i) Resignation for Good Reason after Change in Control Event. If, prior to the expiration of the term of Associate's employment with the Company (the "Employment Term") pursuant to that certain offer letter dated DATE of LETTER, but after the occurrence of a Change in Control Event (as defined below), the Associate resigns for Good Reason (as defined below) within six (6) months of such Change in Control Event, then the entire Option shall vest and immediately become fully exercisable.
(ii) Termination by the Company without Cause. If, prior to the expiration of the Employment Term, the Company terminates Associate's employment without Cause (as defined below), then the Option shall vest and become exercisable with respect to an additional six (6) months of vesting, measured from the date of termination of employment.
(iii) Release. In order for the vesting of the Option to accelerate as provided in this Section 3(b), Associate must execute and deliver to the Company a release, the form and substance of which are acceptable to the Company.
(c) Definitions. For purposes of this Section 3, the following definitions shall have the meanings set forth below:
(i) "Cause" means for any of the following reasons: (i) willful or deliberate misconduct by Associate that materially damages the Company; (ii) misappropriation of Company assets; (iii) Associate's conviction of or a plea of guilty or "no contest" to, a felony; or (iv) any willful disobedience of the lawful and unambiguous instructions of the Chief Executive Officer of the Company; provided that the Chief Executive Officer has given Associate written notice of such disobedience or neglect and Associate has failed to cure such disobedience or neglect within a period reasonable under the circumstances.
(ii) "Change in Control Event" means any of the following: (i) any person or entity (except for a current stockholder) becomes the beneficial owner of greater than 50% of the then outstanding voting power of the Company; (ii) a merger or consolidation with another entity where the voting securities of the Company outstanding immediately before the transaction constitute less than a majority of the voting power of the voting securities of the Company or the surviving
entity outstanding immediately after the transaction, or (iii) the sale or disposition of all or substantially all of the company's assets.
(iii) "Good Reason" means (i) a change in Associate's position with the Company or its successor that materially reduces Associate's title, duties or level of responsibility; or (ii) the relocation of the Company or its successor greater than 50 miles away from the then current location of the Company's principal offices.
(d) Expiration Date. Except as otherwise provided in this Agreement, the Option may not be exercised after the date (hereinafter the "Expiration Date") that is the tenth anniversary of the date of grant set forth on the signature page hereof (the "Date of Grant") or, if the Associate is a "10% Shareholder" as described in Section 7(b) of the Plan, the fifth anniversary of the Date of Grant.
(e) Exercise Procedure. Subject to the conditions set forth in
this Agreement, the Option shall be exercised by the Associate's delivery of
written notice of exercise to the chief financial officer of the Company,
specifying the number of Shares to be purchased and the aggregate Exercise Price
to be paid therefor, accompanied by payment in full in accordance with Section
4. Such exercise shall be effective upon receipt by the chief financial officer
of the Company of such written notice together with the required payment. The
Associate may purchase less than the total number of Shares covered hereby,
provided that no partial exercise of the Option may be for any fractional Share
or for less than ten whole Shares.
(f) Continuous Employment Required. Except as otherwise provided in this Section 3, the Option may not be exercised unless the Associate, at the time he or she exercises the Option, is, and has been at all times since the Date of Grant of the Option, an employee of one or more of the Company, a Parent Corporation or a Subsidiary (as such terms are defined in the Plan). For all purposes of this Agreement, (i) "employment" shall be defined in accordance with the provisions of Section 1.421-7(h) of the Income Tax Regulations or any successor regulations, and (ii) if the Option shall be assumed or a new option substituted therefor in a transaction to which Section 424(a) of the Code applies, employment by such assuming or substituting corporation (hereinafter called the "Successor Corporation") or by a Parent Corporation or a Subsidiary thereof (as defined in the Plan, respectively, but with the Successor Corporation substituted for the Company in such definitions) shall be considered for all purposes of this Agreement to be employment by the Company, a Parent Corporation or a Subsidiary, as the case may be.
(g) Termination of Employment. If the Associate ceases to be employed by the Company, a Parent Corporation or Subsidiary for any reason other than death or disability or a discharge for Cause the right to exercise the Option shall terminate three months after such cessation (but in no event after the Expiration Date).
(h) Exercise Period Upon Death or Disability. If the Associate
dies or becomes disabled (within the meaning of Section 22(e)(3) of the Code)
prior to the Expiration Date, while he or she is an employee of the Company, a
Parent Corporation or a Subsidiary, or if the Associate dies within three months
after the Associate ceases to be an employee of any of the foregoing entities
(other than as the result of a discharge for "cause" as specified in subsection
(i) below), the Option shall be exercisable, within the period of one year
following the date of death or disability of the Associate (but in no event
after the Expiration Date), by the Associate, the Associate's legal
representative (in the event of legal incapacity) or by the person to whom the
Option is transferred by will or the laws of descent and distribution. Except as
otherwise indicated by the context, the term "Associate", as used in this
Agreement, shall be deemed to include the estate of the Associate, or any person
who acquirers the right to exercise the Option by bequest or inheritance or
otherwise by reason of the death of the Associate.
(i) Discharge for Cause. If the Associate, prior to the Expiration Date, ceases his or her employment with the Company, a Parent Corporation or a Subsidiary because he or she is discharged for Cause, the right to exercise the Option shall terminate immediately upon such cessation of employment.
4. Payment of Exercise Price. Payment of the aggregate Exercise Price for Shares purchased upon exercise of the Option shall be made by delivery to the Company of cash or a check to the order of the Company.
5. Delivery of Shares. The Company shall, upon payment of the aggregate Exercise Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Associate, provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of delivery of such Shares shall be extended for the period necessary to complete such action. No Shares shall be issued and delivered upon exercise of the Option unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with.
6. Non-transferability of Option. Except as provided in subsection
(h) of Section 3, or as otherwise agreed to by the Board of Directors or a
committee thereof, the Option is personal and no rights granted hereunder may be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of the Option or of such rights contrary to the
provisions hereof, or upon the levy of any attachment or
similar process upon the Option or such rights, the Option and such rights shall, at the election of the Company, become null and void.
7. No Special Employment Rights. Nothing contained in the Plan or this Agreement shall be construed or deemed by any person under any circumstances to bind the Company or any Parent Corporation or Subsidiary to continue the employment of the Associate for the period within which the Option may be exercised. Moreover, during the period of the Associate's employment, the Associate shall render diligently and faithfully the services which are assigned to the Associate from time to time by the Board of Directors or by the executive officers of the Company or any Parent Corporation or Subsidiary and shall at no time take any action which directly or indirectly would be inconsistent with the best interests of the foregoing entities.
8. Rights as a Shareholder. The Associate shall have no rights as a Shareholder with respect to any Shares which may be purchased by exercise of the Option unless and until a certificate representing such Shares is duly issued and delivered to the Associate. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued except as provided for in Sections 9 or 10 of this Agreement.
9. Recapitalization. In the event that the outstanding shares of Common Stock of the Company are changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, stock dividend, combination or subdivision, appropriate adjustment shall be made in the number and kind of Shares to which the Option shall be exercisable. Such adjustment to the Option shall be made without change in the total price applicable to the unexercised portion of the Option, and a corresponding adjustment in the Exercise Price per Share shall be made. No such adjustment shall be made which would, within the meaning of any applicable provisions of the Code, constitute a modification, extension or renewal of the Option or a grant of additional benefits to the Associate.
10. Reorganization of the Company. In case (i) the Company is merged
or consolidated with another corporation and the Company is not the surviving
corporation, (ii) all or substantially all of the assets or more than 50% of the
outstanding voting stock of the Company is acquired by any other corporation or
(iii) the Company is reorganized or liquidated prior to the Expiration Date, the
Board of Directors of the Company, or the board of directors of any corporation
assuming the obligations of the Company, shall, as to the Option, either (x)
make appropriate provision for the protection of the Option by the substitution
on an equitable basis of appropriate stock of the Company, or of the merged,
consolidated or otherwise reorganized corporation which will be issuable in
respect of the shares of Common Stock of the Company, provided that no
additional benefits shall be conferred upon the Associate as a result of such
substitution, and the excess of the aggregate fair market value of the Shares
subject to the
Option immediately after such substitution over the purchase price thereof is not more than the excess of the aggregate fair market value of the Shares subject to the Option immediately before such substitution over the purchase price thereof, or (y) upon written notice to the Associate, provide that the Option must be exercised within a specified number of days of the date of such notice or they will be terminated.
11. Withholding Taxes. The Company's obligation to deliver Shares upon the exercise of the Option shall be subject to the Associate's satisfaction of all applicable federal, state and local income and employment tax withholding requirements.
12. Investment Representations; Legend.
(a) Representations. As of the time of any exercise of the Option, the Associate represents, warrants and covenants to the Company that:
(i) Any Shares purchased upon exercise of the Option shall be acquired for the Associate's account for investment only and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act of 1933, as amended (the "Securities Act"), or any rule or regulation thereunder.
(ii) The Associate is an "accredited investor" as such term is defined in Regulation D promulgated under the Securities Act. (iii) The Associate has had such opportunity as he or |
she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Associate to evaluate the merits and risks of an investment in the Company.
(iv) The Associate is able to bear the economic risk of holding such Shares for an indefinite period.
(v) The Associate understands that (A) the Shares will not be registered under the Securities Act and are "restricted securities" within the meaning of Rule 144 under the Securities Act; (B) the Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available; (C) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Company's Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (D) the Company has no obligation or current intention to register any Shares acquired pursuant to the exercise of the Option under the Securities Act.
(b) Tax Consequences. The Associate hereby represents that the Associate has obtained appropriate legal or tax advice with respect to the tax consequences to the Associate of exercising the Option and selling the Shares.
(c) Legend on Stock Certificates. All stock certificates representing Shares issued to the Associate upon exercise of the Option shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL CONTAINED IN A STOCK OPTION AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
By making payment upon exercise of the Option, the Associate shall be deemed to have reaffirmed, as of the date of such payment, the representations made in this Section 12.
13. Limitations on Dispositions of Incentive Stock Options.
(a) Prohibitions on Sales of Shares. It is understood and intended that the Option shall qualify as an Incentive Stock Option. Accordingly, the Associate understands that in order to obtain the benefits of an incentive stock option under Section 421 of the Code, no sale or other disposition may be made of any Shares acquired upon exercise of the Option within the one year period beginning on the day after the day of the transfer of such Shares to him or her, nor within the two-year period beginning on the day after the date of this Agreement. If the Associate intends to dispose or does dispose (whether by sale, exchange, gift, transfer or otherwise) of any such Shares within said periods, he or she will notify the Company in writing within ten days after such disposition.
(b) Maximum Number of Incentive Stock Options Exercisable During One Year. To the extent that the aggregate fair market value (determined as of
the time an option is granted pursuant to the Plan) of Common Stock with respect to which an option exercisable for the first time by the Associate during any calendar year under the Plan and all similar plans maintained by the Company exceeds $100,000.00, options for such Common Stock shall be treated as options that are not Incentive Stock Options. For purposes of this provision, Options shall be taken into account in the order in which they were granted.
14. Right of First Refusal. If the Associate wishes to sell or otherwise transfer any of the Shares, then at least 30 days prior to any such transfer, the Associate shall give notice to the Company (the "Notice"). The Notice shall set forth (i) the number of Shares proposed to be sold or transferred; (ii) the date or proposed date of the sale or transfer; (iii) the identity of the proposed transferee; and (iv) the principal terms of the transfer, including the cash or other property or consideration to be received upon such transfer. The Company shall have the right, but not the obligation, to purchase all, but not less than all, of the Shares on the same terms specified in the Notice. Within 30 days after receipt of the Notice, the Company shall give written notice (the "Company Notice") to the Associate stating whether or not it elects to exercise its right to purchase the Shares and a date and time for consummation of such purchase, not more than 10 days after the receipt by the Associate of the Company Notice. Failure by the Company to deliver a Company Notice within such time period shall be deemed an election by the Company not to exercise its right to purchase the Shares. If the Company does not exercise its right to purchase the Shares, then the Associate shall be free to transfer the Shares on the terms provided in the Notice. Any Shares not purchased within a period of 90 days of the Notice by the proposed transferee in the Notice may not be sold or otherwise disposed of until they are again offered to the Company under the procedures specified in this Section 14. The Company's right of first refusal described in this Section 14 shall terminate upon the closing of an initial public offering of the Company's Common Stock.
15. Miscellaneous.
(a) This Agreement and any instruments delivered pursuant to this Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
(b) Any claim or controversy arising out of, or relating to, this Agreement, other than with respect to the Confidentiality Agreement, between Employee and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator
within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
(c) This Agreement shall extend to, be binding upon and inure to the benefit of the Associate, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Option or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Agreement shall be valid unless in writing and signed by both parties.
(e) The waiver of any breach of any duty, term or condition of this Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Agreement.
(f) All notices pursuant to this Agreement will be in writing and will be sent by personal delivery, telecopier, electronic mail or by prepaid registered or certified mail, return receipt requested, addressed to the parties hereto at the addresses set forth beneath their names on the signature page hereto or to such other addresses as may hereafter be specified by like notice in writing by either of the parties, and will be deemed given (i) upon receipt if by personal delivery, (ii) on the day on which delivered if delivered by telecopier (with confirmation of receipt (such receipt to be established by acceptable protocol)), (iii) upon mailing if sent by registered or certified mail or (iv) when transmitted if delivered by electronic mail (with satisfactory evidence of transmittal (such evidence of transmittal to be established by acceptable protocol)). Copies of all notices shall be sent to: Amicus Therapeutics, Inc., 6 Cedarbrook Drive, Cranbury, NJ 08512.
(g) The headings of the sections of this Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.
Date of Grant: Amicus Therapeutics, Inc. February 28, 2006 By: ----------------------------------- John F. Crowley Chairman & CEO Address: 6 Cedar Brook Drive Cranbury, NJ 08512 |
ASSOCIATE'S ACCEPTANCE
The undersigned hereby accepts the foregoing Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
ASSOCIATE
SSN#:
AMICUS THERAPEUTICS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
1. Grant of Option. Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), hereby grants to XXX (the "Associate"), an option (the "Option"), pursuant to the Company's 2002 Equity Incentive Plan (the "Plan"), to purchase up to an aggregate of XXX shares (the "Shares") of Common Stock, $.01 par value ("Common Stock"), of the Company at a price of $XX per Share (the "Exercise Price"), purchasable as set forth in and subject to the terms and conditions of this Agreement and the Plan.
2. Exercise of Option and Provisions for Termination.
(a) Exercisability of Option. The Option shall become exercisable as follows: Beginning on XX and on the first day of each calendar month thereafter, the shares shall vest and become exercisable in XX equal monthly installments of XX shares.
(b) The periods of time following the Associate's cessation of service during which the Option remains outstanding shall not be included for purposes of determining the exercisability of the Option under this subsection (a).
(c) Expiration Date. Except as otherwise provided in this Agreement, the Option may not be exercised after the date (hereinafter the "Expiration Date") that is the fifth anniversary of the date of grant set forth on the signature page hereof.
(d) Exercise Procedure. Subject to the conditions set forth in this Agreement, the Option shall be exercised by the Associate's delivery of written notice of exercise to the chief financial officer of the Company, specifying the number of Shares to be purchased and the aggregate Exercise Price to be paid therefor, accompanied by payment in full in accordance with Section 3. Such exercise shall be effective upon receipt by the chief financial officer of the Company of such written notice together with the required payment. The Associate may purchase less than the total number of Shares covered hereby, provided that no partial exercise of the Option may be for any fractional Share or for less than ten whole Shares.
3. Payment of Exercise Price. Payment of the aggregate Exercise Price for Shares purchased upon exercise of the Option shall be made by delivery to the Company of cash or a check to the order of the Company.
4. Delivery of Shares. The Company shall, upon payment of the aggregate Exercise Price for the number of Shares purchased and paid for, make prompt delivery of such Shares to the Associate, provided that if any law or regulation requires the Company to take any action with respect to such Shares before the issuance thereof, then the date of
delivery of such Shares shall be extended for the period necessary to complete such action. No Shares shall be issued and delivered upon exercise of the Option unless and until, in the opinion of counsel for the Company, any applicable registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), any applicable listing requirements of any national securities exchange on which stock of the same class is then listed, and any other requirements of law or of any regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully complied with.
5. Non-transferability of Option. Except as otherwise agreed to by the Board of Directors or a committee thereof, the Option is personal and no rights granted hereunder may be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) nor shall any such rights be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of the Option or of such rights contrary to the provisions hereof, or upon the levy of any attachment or similar process upon the Option or such rights, the Option and such rights shall, at the election of the Company, become null and void.
6. Rights as a Shareholder. The Associate shall have no rights as a shareholder with respect to any Shares which may be purchased by exercise of the Option unless and until a certificate representing such Shares is duly issued and delivered to the Associate. No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued except as provided for in Sections 7 or 8 of this Agreement.
7. Recapitalization. In the event that the outstanding shares of Common Stock of the Company are changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, stock dividend, combination or subdivision, appropriate adjustment shall be made in the number and kind of Shares to which the Option shall be exercisable. Such adjustment to the Option shall be made without change in the total price applicable to the unexercised portion of the Option, and a corresponding adjustment in the Exercise Price per Share shall be made. No such adjustment shall be made which would, within the meaning of any applicable provisions of the Code, constitute a modification, extension or renewal of the Option or a grant of additional benefits to the Associate.
8. Reorganization of the Company. In case (i) the Company is merged or
consolidated with another corporation and the Company is not the surviving
corporation, (ii) all or substantially all of the assets or more than 50% of the
outstanding voting stock of the Company is acquired by any other corporation or
(iii) the Company is reorganized or liquidated prior to the Expiration Date, the
Board of Directors of the Company, or the board of directors of any corporation
assuming the obligations of the Company, shall, as to the Option, either (x)
make appropriate provision for the protection of the Option by the substitution
on an equitable basis of appropriate stock of the Company, or of the
merged, consolidated or otherwise reorganized corporation which will be issuable in respect of the shares of Common Stock of the Company, provided that no additional benefits shall be conferred upon the Associate as a result of such substitution, and the excess of the aggregate fair market value of the Shares subject to the Option immediately after such substitution over the purchase price thereof is not more than the excess of the aggregate fair market value of the Shares subject to the Option immediately before such substitution over the purchase price thereof, or (y) upon written notice to the Associate, provide that the Option must be exercised within a specified number of days of the date of such notice or they will be terminated. In any such case, the Board of Directors may, in its discretion, accelerate the exercise dates of the Option.
9. Withholding Taxes. The Company's obligation to deliver Shares upon the exercise of the Option shall be subject to the Associate's satisfaction of all applicable federal, state and local income and employment tax withholding requirements.
10. Investment Representations; Legend.
(a) Representations. As of the time of any exercise of the Option, the Associate represents, warrants and covenants to the Company that:
(i) Any Shares purchased upon exercise of the Option shall be acquired for the Associate's account for investment only and not with a view to, or for sale in connection with, any distribution of the Shares in violation of the Securities Act, or any rule or regulation thereunder.
(ii) The Associate is an "accredited investor" as such term is defined in Regulation D promulgated under the Securities Act.
(iii) The Associate has had such opportunity as he or she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Associate to evaluate the merits and risks of an investment in the Company.
(iv) The Associate is able to bear the economic risk of holding such Shares for an indefinite period.
(v) The Associate understands that (A) the Shares will not be
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; (B) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(C) in any event, the exemption from registration under Rule 144 will not be
available for at least one year and even then will not be available unless a
public market then exists for the Company's Common Stock, adequate information
concerning the Company is then available to the public, and other terms and
conditions of Rule 144 are complied with; and (D) the Company has no
obligation or current intention to register any Shares acquired pursuant to the exercise of the Option under the Securities Act.
(b) Tax Consequences. The Associate hereby represents that the Associate has obtained appropriate legal or tax advice with respect to the tax consequences to the Associate of exercising the Option and selling the Shares.
(c) Legend on Stock Certificates. All stock certificates representing Shares issued to the Associate upon exercise of the Option shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RIGHTS OF FIRST REFUSAL CONTAINED IN A STOCK OPTION AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
By making payment upon exercise of the Option, the Associate shall be deemed to have reaffirmed, as of the date of such payment, the representations made in this Section 10.
11. Right of First Refusal. If the Associate wishes to sell or otherwise transfer any of the Shares, then at least 30 days prior to any such transfer, the Associate shall give notice to the Company (the "Notice"). The Notice shall set forth (i) the number of Shares proposed to be sold or transferred; (ii) the date or proposed date of the sale or transfer; (iii) the identity of the proposed transferee; and (iv) the principal terms of the transfer, including the cash or other property or consideration to be received upon such transfer. The Company shall have the right, but not the obligation, to purchase all, but not less than all, of the Shares on the same terms specified in the Notice. Within 30 days after receipt of the Notice, the Company shall give written notice (the "Company Notice") to the Associate stating whether or not it elects to exercise its right to purchase the Shares and a date and time for consummation of such purchase, not more than 10 days after the receipt by the Associate of the Company Notice. Failure by the Company
to deliver a Company Notice within such time period shall be deemed an election by the Company not to exercise its right to purchase the Shares. If the Company does not exercise its right to purchase the Shares, then the Associate shall be free to transfer the Shares on the terms provided in the Notice. Any Shares not purchased within a period of 90 days of the Notice by the proposed transferee in the Notice may not be sold or otherwise disposed of until they are again offered to the Company under the procedures specified in this Section 11. The Company's right of first refusal described in this Section 11 shall terminate upon the closing of an initial public offering of the Company's Common Stock.
12. Miscellaneous.
(a) This Agreement and any instruments delivered pursuant to this Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
(b) Any claim or controversy arising out of, or relating to, this Agreement, other than with respect to any confidentiality agreement between Associate and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any Court having jurisdiction thereof.
(c) This Agreement shall extend to, be binding upon and inure to the benefit of the Associate, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Option or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
(d) This Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Agreement shall be valid unless in writing and signed by both parties.
(e) The waiver of any breach of any duty, term or condition of this Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Agreement.
(f) All notices pursuant to this Agreement will be in writing and will be sent by personal delivery, telecopier, electronic mail or by prepaid registered or certified mail, return receipt requested, addressed to the parties hereto at the addresses set forth beneath their names on the signature page hereto or to such other addresses as may hereafter be specified by like notice in writing by either of the parties, and will be deemed given (i) upon receipt if by personal delivery, (ii) on the day on which delivered if delivered by telecopier (with confirmation of receipt (such receipt to be established by acceptable protocol)), (iii) upon mailing if sent by registered or certified mail or (iv) when transmitted if delivered by electronic mail (with satisfactory evidence of transmittal (such evidence of transmittal to be established by acceptable protocol)). Copies of all notices shall be sent to: Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512, Attention: VP of Human Resources and Leadership Development, Telecopier No. 609-662-2004.
(g) The headings of the sections of this Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same Agreement.
Date of Grant: XXX Amicus Therapeutics, Inc. By: ------------------------------------- Name: XX Title: XX Address: 6 Cedar Brook Drive Cranbury, NJ 08512 |
ASSOCIATE'S ACCEPTANCE
The undersigned hereby accepts the foregoing Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
ASSOCIATE
SSN:
Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September 11, 2006, between AMICUS THERAPEUTICS, INC., a Delaware corporation having an office at 6 Cedar Brook Drive, Cranbury, New Jersey 08512 (the "Company"), and DONALD J. HAYDEN, an individual residing at 9 Larkspur Lane, Newtown, Pennsylvania 18940 ("Employee").
PREAMBLE
WHEREAS, the Employee has served as Chairman of the Board of Directors of the Company since February 28, 2006 and to date has provided no services to the Company other than service as Chairman;
WHEREAS, the Company's President and Chief Executive Officer has been called to active duty military service for a period anticipated to end February 23, 2007;
WHEREAS, the Company desires to engage Employee to serve in the capacities of Interim President and Chief Executive Officer in addition to his service as Chairman of the Board of Directors and Employee desires to perform the duties of such offices, all pursuant to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the sufficiency and receipt whereof is hereby acknowledged, the parties agree as follows:
SECTION 1. Employment.
1.1 Duties. Subject to the terms and conditions of this Agreement, Employee is hereby employed by the Company to serve as its Interim President and Chief Executive Officer. Employee accepts such employment, and agrees to discharge all of the duties normally associated with the positions of Interim President and Chief Executive Officer, to faithfully and to the best of his abilities perform such other services consistent with his position as a senior executive officer as may from time to time be assigned to him by the Board of Directors of the Company and to devote all of his skill and attention to such services. Notwithstanding the foregoing, however, Employee may serve on the boards of directors of other companies, and in civic, cultural, philanthropic and professional organizations so long as such service does not detract from the performance of Employee's duties hereunder, such determination to be made by the Board of Directors in its sole discretion. At all times during which Employee remains Interim President and Chief Executive Officer of the Company, Employee shall serve, at the request of the Company's Board of Directors, as an officer or director of any Company affiliate without additional remuneration therefor. Employee also serves as Chairman of the Board of Directors of the Company, but such service is not governed by the terms of this Agreement.
1.2 Time Commitment. Employee shall be present for duties at the Company's principal offices no less than two (2) days per week (inclusive of days in which Employee travels on reasonable and necessary Company business).
SECTION 2. Compensation and Benefits.
2.1 Base Salary. During the Employment Term (as hereinafter defined), the Company shall pay Employee a salary at the annual rate of $200,000 or such greater amount as the Company's Board of Directors may from time to time establish pursuant to the terms hereof (the "Base
Salary''). Such Base Salary may be increased, but not decreased, by the Board of Directors of the Company in its sole discretion. The Base Salary shall be payable in accordance with the Company's customary payroll practices for its senior management personnel.
2.2 Bonus. Upon successful completion of the Employment Term, Employee shall be eligible to receive a bonus (the "Bonus") in such amount as determined by the Board of Directors in its sole discretion.
2.3 Benefits
(a) Benefit Plans. During the Employment Term, Employee may participate, on the same basis and subject to the same qualifications as other senior management personnel of the Company, in any benefit plans (including health and medical insurance of Employee, Employee's spouse and Employee's dependents) and policies in effect with respect to senior management personnel of the Company, including any stock option plan. Without limiting the foregoing, at such time as the Company has increased the number of shares authorized for grant under the Company's 2002 Equity Incentive Plan, Employee shall be granted incentive stock options (the "Options") to purchase 100,000 shares of common stock at a purchase price of $1.09 per share. Subject to the terms of Section 4 hereof, the Options shall vest in full at the end of the Employment Term.
(b) Reimbursement of Expenses. During the Employment Term, the Company shall pay or promptly reimburse Employee, upon submission of proper invoices in accordance with the Company's normal procedures, for all reasonable out-of-pocket business, entertainment and travel expenses incurred by Employee in the performance of his duties hereunder.
(c) Vacation. During the Employment Term, Employee shall be entitled to up to two (2) calendar weeks of vacation (inclusive of business days in which Employee is not at the Company's principal offices or is not performing Company duties) every six (6) months during the Employment Term in accordance with the policies of the Company applicable to senior management personnel from time to time. Vacation week(s), to the extent not used in the first six (6) months, may be carried over to the second six (6) months. Unused vacation may not extend to the Employment Term or result in additional compensation upon termination of this Agreement.
(d) Withholding. The Company shall be entitled to withhold from amounts payable or benefits accorded to Employee under this Agreement all federal, state and local income, employment and other taxes, as and in such amounts as may be required by applicable law.
SECTION 3. Employment Term. The term of this Agreement (the "Employment Term") shall commence on the date of this Agreement and shall terminate on the earlier to occur of: (a) the close of business on the day John F. Crowley's active duty military service terminates; or (b) September 11, 2007. Employee's employment hereunder shall be coterminous with the Employment Term, unless sooner terminated as provided in Section 4.
SECTION 4. Termination; Severance Benefits.
4.1 Generally. Either the Board of Directors of the Company or Employee may terminate Employee's employment hereunder, for any reason, at any time prior to the expiration of the Employment Term, upon thirty (30) days prior written notice to the other party. Termination of Employee's employment hereunder for any reason shall have no effect on Employee's status as Chairman of the Board of Directors of the Company. Such termination shall, however, result in an automatic
termination of Employee's service in any other position or office he may at the time hold with the Company or any of its affiliates.
4.2 Termination by Employee. If, prior to the expiration of the Employment Term, Employee voluntarily resigns from his employment, Employee shall (i) receive no further Base Salary or Bonus hereunder, other than accrued and unpaid Base Salary through and including the effective date of termination of his employment with the Company (the "Accrued Compensation") and (ii) cease to be covered under or be permitted to participate in or receive any of the benefits described in Section 2.3 hereof (provided, however, that Employee shall be entitled to receive any benefits under Section 2.3 hereof to the extent such benefits have accrued through and including the effective date of termination of his employment with the Company).
4.3 Termination by the Company.
(a) Without Cause. If, prior to the expiration of the Employment
Term, the Company terminates Employee's employment hereunder without Cause,
then Employee shall be entitled to receive the Severance Payment commencing upon
the effective date of the termination of Employee's employment with the
Company, shall be entitled to receive (on such effective date of termination)
benefits under Section 2.3(b) hereof to the extent such benefits have accrued
through and including such effective date of termination and shall continue to
be covered under or be permitted to participate in or receive the benefits
described in Section 2.3(a) hereof for the period of time during which the
Severance Payment is payable to Employee. In addition, the Options shall vest
in full on the date of Employee's effective date of termination and Employee
shall continue to be covered under or be permitted to participate in or receive
applicable Benefits for the period of time during which the Severance Payment
is payable to Employee. "Cause", as used in this Agreement, means for any of
the following reasons: (i) willful or deliberate misconduct by Employee that
materially damages the Company; (ii) misappropriation of Company assets; (iii)
Employee's conviction of or a plea of guilty or "no contest" to, a felony; or
(iv) any willful disobedience of the lawful and unambiguous instructions of the
Board of Directors of the Company; provided that the Board of Directors has
given Employee thirty (30) days written notice of such disobedience or neglect
and Employee has failed to cure such cause.
(b) For Cause. If, prior to the expiration of the Employment Term,
the Company terminates Employee's employment hereunder for Cause, Employee
shall (i) receive no further Base Salary or Bonus hereunder, other than Accrued
Compensation which shall be payable on the effective dated of the termination
of Employee's employment with the Company and (ii) cease to be covered under or
be permitted to participate in or receive any of the benefits described in
Section 2.3 hereof; provided, however, that (A) Employee shall be entitled to
receive (on such effective date of termination) any benefits under Section 2.3
hereof to the extent such benefits have accrued through and including such
effective date of termination, and (B) if Employee is terminated for Cause
hereunder solely as a result of being convicted of a felony, which conviction
is ultimately reversed on appeal or pardoned, Employee shall be deemed to have
been terminated without Cause as of the date of such termination for Cause.
4.4 Termination upon Death or Disability. Employee's employment hereunder shall terminate upon death of Employee. The Company may terminate Employee's employment hereunder in the event Employee is disabled and such disability continues for more than 180 days. "Disability" shall be defined as the inability to render the services required of him, with or without a reasonable accommodation, under this Agreement as a result of physical or mental incapacity. In the event of death or termination by the Company due to disability of the Employee, the Company shall continue to pay to Employee or Employee's estate, as the case may be, the compensation required under Section 2, for a period of two (2) months.
4.5 Release Required. In order to receive the Severance Payment, and other benefits under Section 4 hereof, including the acceleration of vesting of the Options, Employee must execute and deliver to the Company a release, the form and substance of which are acceptable to the Company.
SECTION 5. General.
5.1 Confidentiality and Non-Competition Agreement. Contemporaneously herewith, Employee and the Company are entering into that certain Confidentiality and Non-Competition Agreement (the "Confidentiality Agreement"), the terms of which are incorporated herein by reference and made a part hereof.
5.2 No Conflict. Employee represents and warrants that he has not entered, nor will he enter, into any other agreements that restrict his ability to fulfill his obligations under this Agreement and the Confidentiality Agreement.
5.3 Governing Law. This Agreement shall be construed, interpreted and governed by the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
5.4 Binding Effect. This Agreement shall extend to and be binding upon Employee, his legal representatives, heirs and distributees and upon the Company, its successors and assigns regardless of any change in the business structure of the Company.
5.5 Assignment. Neither this Agreement nor any of the rights or obligations hereunder shall be assigned or delegated by any party without the prior written consent of the other party.
5.6 Entire Agreement. Except for any stock option or stock award agreements between the parties and the Confidentiality Agreement, this Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Agreement shall be valid unless in writing and signed by both parties.
5.7 Waiver. The waiver of any breach of any duty, term or condition of this Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Agreement.
5.8 Severability. If any provision of this Agreement shall be unenforceable in any jurisdiction in accordance with its terms, the provision shall be enforceable to the fullest extent permitted in that jurisdiction and shall continue to be enforceable in accordance with its terms in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
5.9 Conflicting Agreements. In the event of a conflict between this Agreement and any other agreement between Employee and the Company, the terms and provisions of this Agreement shall control.
5.10 Resolution of Disputes. Any claim or controversy arising out of, or relating to, this Agreement, other than with respect to the Confidentiality Agreement, between Employee and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall
select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment.
If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrators(s) may be entered by any Court having jurisdiction thereof.
5.11 Notices. All notices pursuant to this Agreement shall be in writing and shall be sent by prepaid certified mail, return receipt requested or by recognized air courier service addressed as follows:
(i) If to the Company to:
Amicus Therapeutics, Inc. 6 Cedar Brook Drive Cranbury, New Jersey 08512
(ii) If to Employee to:
Donald J. Hayden 9 Larkspur Lane Newtown, Pennsylvania 18940
or to such other addresses as may hereinafter be specified by notice in writing by either of the parties, and shall be deemed given three (3) business days after the date so mailed or sent.
5.12 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
"EMPLOYEE": /s/ DONALD J. HAYDEN ------------------------- DONALD J. HAYDEN "COMPANY": AMICUS THERAPEUTICS, INC. By: /s/ Matthew Patterson ------------------------- Name: Matthew Patterson ------------------------- Title: COO ------------------------- |
Exhibit 10.20
AMICUS THERAPEUTICS, INC.
RESTRICTED SHARE AWARD AGREEMENT
THIS RESTRICTED SHARE AWARD AGREEMENT (the "Award Agreement") is dated this 8th day of March, 2007, by and between Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), and James E. Dentzer (the "Associate").
WHEREAS, on July 26, 2006, the Company and the Associate entered into that certain offer letter (the "Offer Letter") in connection with Associate's employment with the Company;
WHEREAS, among the terms set forth in the Offer Letter was an award (the "Award") of 300,000 shares of common stock, $.01 par value (the "Common Stock") under the Amicus Therapeutics, Inc. 2002 Equity Incentive Plan (the "Plan"), effective upon the commencement of Associate's employment with the Company; and
NOW, THEREFORE, in consideration of the foregoing and the mutual obligations set forth herein, the Company and the Associate agree as follows:
1. Award. The Award to the Associate of restricted shares ("Restricted Shares") of Common Stock is subject to the terms and conditions set forth in this Restricted Share Award Agreement ("Award Agreement" or "Award"), and in the Plan. By executing this Award Agreement, the Associate agrees to be bound by all the Plan's terms and conditions as if they had been set forth specifically herein. Capitalized terms used but not otherwise defined herein are defined in the Plan.
2. Specific Terms. The Associate's Award of Restricted Shares have the following terms:
Number of Restricted Shares
Awarded: 300,000 Award Date: October 2, 2006 Vesting: The Restricted Shares shall vest as follows: 75,000 shares shall vest on the first anniversary of the Award Date (the "Anniversary Date"). 6,250 shares shall vest monthly, beginning on the first day of each of the thirty-six (36) calendar months following the Anniversary Date. |
3. Issuance of Restricted Shares. The Company shall reflect the issuance in the Associate's name of all the Restricted Shares subject to this Award. Such Restricted Shares shall be held in the custody of the Company or its designee for the Associate's account. The Restricted Shares shall be subject to the restrictions set forth herein. Until applicable vesting restrictions lapse, any certificates that the Associate receives for Restricted Shares will include a legend stating that they are subject to the restrictions set forth in the Plan and this Award Agreement.
4. Acceleration of Vesting of Restricted Shares.
a. Resignation for Good Reason after Change in Control Event. If, prior to the expiration of the term of Associate's employment with the Company (the "Employment Term") pursuant to the Offer Letter, but after the occurrence of a Change in Control Event (as defined below), the Associate resigns for Good Reason (as defined below) within six (6) months of such Change in Control Event, the entire Award of Restricted Shares shall vest and immediately become fully exercisable.
b. Termination by the Company without Cause. If, prior to the expiration of the Employment Term, the Company terminates Associate's employment without Cause (as defined below), then the Award shall vest with respect to an additional six (6) months of vesting, measured from the date of termination of employment.
c. Release. In order for the vesting of the Award to accelerate as provided in this Section 4, Associate must execute and deliver to the Company a release, the form and substance of which are acceptable to the Company.
d. Definitions. For purposes of this Section 4, the following definitions shall have the meanings set forth below;
(i) "Cause" means for any of the following reasons: (i) willful or deliberate misconduct by Associate that materially damages the Company; (ii) misappropriation of Company assets; (iii) Associate's conviction of, or a plea of guilty or "no contest" to, a felony; or (iv) any willful disobedience of the lawful and unambiguous instructions of the Chief Executive Officer of the Company; provided that the Chief Executive Officer has given Associate written notice of such disobedience or neglect and Associate has failed to cure such disobedience or neglect within a period reasonable under the circumstances.
(ii) "Change in Control Event" means any of the following: (i) any person or entity (except for a current stockholder) becomes the beneficial owner of greater than 50% of the then outstanding voting power of the Company; (ii) a merger or consolidation with another entity where the voting securities of the Company outstanding immediately before the transaction constitute less than a majority of the voting power of the voting securities of the
Company or the surviving entity outstanding immediately after the transaction, or (iii) the sale or disposition of all or substantially all of the Company's assets.
(iii) "Good Reason" means (i) a change in Associate's position
with the Company or its successor that materially reduces
Associate's title, duties or level of responsibility; or
(ii) the relocation of the Company or its successor greater
than 50 miles away from the then current location of the
Company's principal offices.
5. Forfeiture of Restricted Shares. In the event that the Associate is no longer an employee of the Company, any unvested Restricted Shares (including dividends paid thereon), shall be automatically forfeited (the "Forfeited Shares") and returned to the Company for cancellation upon the effective day of the end of the Associate's employment. "Employment" for the purposes of this Agreement shall be defined in accordance with the provisions of Section Treas. Reg. 1.421-7(h) or any successor regulations.
6. Stockholder Rights; Unvested Restricted Shares.
a. The Company will hold the Restricted Shares in escrow until applicable vesting occurs, if ever. The Associate must deliver to the Company, coincident with the execution and delivery of this Award Agreement, a stock power, endorsed in blank, for each certificate issued and representing the Restricted Shares to enable the Company to return and/or reissue such certificates as provided in this Award Agreement.
b. If an event causes the Associate to forfeit any Restricted Shares, the stock powers will be used to return the certificates for the Forfeited Shares for cancellation. To the extent that a portion of a certificate represents Forfeited Shares and shares which are not Forfeited Shares, then the Company will reissue a certificate to the Associate for such number of shares of Common Stock which do not represent Forfeited Shares and the stock powers shall be effective such purpose.
c. Subject to this Award Agreement, as the owner of record of the Restricted Shares, the Associate's name will be reflected as such on the Company's books and records, and the Associate will be entitled to all rights of a Company stockholder, including voting and dividend rights with respect to the Restricted Shares; provided however, that dividends paid with respect to those Restricted Shares, whether in cash or stock, that have not vested at the time of the dividend payment shall themselves be subject to the same restrictions, vesting and forfeiture conditions that apply to the corresponding restricted Shares.
7. Transfer Restrictions. No Portion of the Restricted Shares may
be sold, transferred, assigned, pledged or otherwise encumbered or disposed of
by the Associate until such Restricted Shares have vested in accordance with
Section 1 hereof and then only in accordance with applicable securities laws and
any Company policy then in effect, should such policy then apply to the
Associate. The Company shall not be required (i) to transfer on its books any
Restricted Shares that have been sold or otherwise transferred in violation of
any provision
of this Award Agreement, or (ii) to treat as owner of such shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom the Associate has attempted to transfer such shares.
8. Right of First Refusal. If the Associate wishes to sell or otherwise
transfer any of the vested Restricted Shares, then at least 30 days prior to any
such transfer, the Associate shall give notice to the Company (the "Notice").
The Notice shall set forth (i) the number of Restricted Shares proposed to be
sold or transferred; (ii) the date or proposed date of the sale or transfer;
(iii) the identity of the proposed transferee; and (iv) the principal terms of
the transfer, including the cash or other property or consideration to be
received upon such transfer. The Company shall have the right, but not the
obligation, to purchase all, but not less than all, of the Restricted Shares on
the same terms specified in the Notice. Within 30 days after receipt of the
Notice, the Company shall give written notice (the "Company Notice") to the
Associate stating whether or not it elects to exercise its right to purchase the
Restricted Shares and a date and time for consummation of such purchase, not
more than 10 days after the receipt by the Associate of the Company Notice.
Failure by the Company to deliver a Company Notice within such time period shall
be deemed an election by the Company not to exercise its right to purchase the
Restricted Shares. If the Company does not exercise its right to purchase the
Restricted Shares, then the Associate shall be free to transfer the Restricted
Shares on the terms provided in the Notice. Any Restricted Shares not purchased
within a period of 90 days of the Notice by the proposed transferee in the
Notice may not be sold or otherwise disposed of until they are again offered to
the Company under the procedures specified in this Section 6. The Company's
right of first refusal described in this Section 6 shall terminate upon the
closing of an initial public offering of the Company's Common Stock.
9. Restrictions on Public Sale by Associate. In connection with any
public offering, the Associate, if requested by the Company and the underwriters
managing such public offering, shall agree not to sell or otherwise transfer or
dispose of any Restricted Shares or other securities of the Company held by the
Associate (other than those Restricted Shares or other securities, if any,
included in the public offering) for a specified period of time determined by
the Company and the underwriters following the effective date of a registration
statement with the Securities and Exchange Commission covering such public
offering (the "Registration Statement"); provided, however, that. (i) such
agreement shall not exceed 180 days from the effective date of such
registration; (ii) all other Restricted Holders enter into similar agreements;
provided, however, that all restrictions set forth in this Section 7 shall
terminate and be of no further force or effect if any other Restricted Holder is
released from, or otherwise no longer bound by, such restrictions; and (iii)
such agreement shall only apply to the first such Registration Statement
covering Common Stock of the Company to be sold on its behalf to the public in
an initial public offering of securities by the Company. For purposes of this
Section 7, "Restricted Holders" shall mean: (x) parties to that certain Third
Amended and Restated Investor Rights Agreement, dated September 13, 2006, by and
among the Company and the stockholders named therein, and (y) any officer or
director of the Company.
10. Taxes and Withholding. No later than the date as of which an amount first becomes includible in the gross income of the Associate for federal income tax purposes with respect to any Restricted Shares, the Associate shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, all federal, state, local and foreign taxes
that are required by applicable laws and regulations to be withheld with respect to such amount. Notwithstanding anything to the contrary contained herein, the Associate may discharge this withholding obligation by directing the Company to withhold Restricted Shares with a value on a vesting date equal to the minimum withholding obligation in connection with such vesting. The Company shall, to the extent permitted by law, have the right to deduct any such taxes from the delivery of the Restricted Shares that gives rise to the withholding requirement.
11. REPRESENTATIONS. The Associate represents, warrants and covenants to the Company that:
a. The Restricted Shares are being acquired for the Associate's account for investment only and not with a view to, or for sale in connection with, any distribution of the Restricted Shares in violation of the Securities Act of 1933, as amended, or any rule or regulation thereunder.
b. The Associate has had such opportunity as he or she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Associate to evaluate the merits and risks of an investment in the Company.
c. The Associate is able to bear the economic risk of holding such Restricted Shares for an indefinite period.
d. The Associate understands that (i) the Restricted Shares will not be registered under the Securities Act and are "restricted securities" within the meaning of Rule 144 under the Securities Act; (ii) the Restricted Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Company's Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) the Company has no obligation or current intention to register any Restricted Shares acquired pursuant to this Award under the Securities Act.
e. The Associate hereby represents that the Associate has obtained appropriate legal or tax advice with respect to the tax consequences to the Associate of the Award.
f. All stock certificates representing Restricted Shares issued to the Associate shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT
AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL AND RESTRICTIONS ON RESALE CONTAINED IN A RESTRICTED SHARE AWARD AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
12. Consent of Spouse/Domestic Partner. If the Associate has a spouse or domestic partner as of the date of this Award Agreement, the Associate's spouse or domestic partner shall execute a Consent of Spouse/Domestic Partner in the form of Exhibit A hereto, effective as of the date hereof. Such consent shall not be deemed to confer or convey to the spouse or domestic partner any rights in the Restricted Shares that do not otherwise exist by operation of law or the agreement of the parties. If the Associate subsequent to the date hereof, marries, remarries or applies to the Company for domestic partner benefits, the Associate shall, not later than 60 days thereafter, obtain his or her new spouse/domestic partner's acknowledgement of and consent to the existence and binding effect of all restrictions contained in this Award Agreement by having such spouse/domestic partner execute and deliver a Consent of Spouse/Domestic Partner in the form of Exhibit A.
13. Miscellaneous.
a. This Award Agreement and any instruments delivered pursuant to this Award Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
b. Any claim or controversy arising out of, or relating to, this Award Agreement, other than with respect to any confidentiality agreement between Associate and the Company (or any officer, director, employee or agent of the Company), or the beach thereof, shall be settled by arbitration administrated by the American Arbitration Association under its National Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at the time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall elect one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any Court having jurisdiction thereof.
c. This Award Agreement shall extend to, be binding upon and inure to the benefit of the Associate, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Award, the Restricted Shares or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
d. This Award Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Award Agreement shall be valid unless in writing and signed by both parties.
e. The waiver of any breach of any duty, term or condition of this Award Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Award Agreement.
f. All notices pursuant to this Award Agreement will be in writing and will be sent by personal delivery, telecopier, electronic mail or by prepaid registered or certified mail, return receipt requested, addressed to the parties hereto at the addresses set forth beneath their names on the signature page hereto or to such other addresses as may hereafter be specified by like notice in writing by either of the parties, and will be deemed given (i) upon receipt if by personal delivery, (ii) on the day on which delivered if delivered by telecopier (with confirmation of receipt (such receipt to be established by acceptable protocol)), (iii) upon mailing if sent by registered or certified mail or (iv) when transmitted if delivered by electronic mail (with satisfactory evidence of transmittal (such evidence of transmittal to be established by acceptable protocol)). Copies of all notices shall be sent to: Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512 Attention: VP, Human Resources and Leadership Development, Telecopier No.609-662-2004.
g. The headings of the sections of this Award Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
h. This Award Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
By the signature of the Associate below, along with the signature of the Company's authorized representative, the Associate and the Company agree that the Restricted Shares are awarded under and governed by the terms and conditions of this Award Agreement and the Plan.
AMICUS THERAPEUTICS, INC.
Date: By: /s/ John F. Crowley ---------------------------------- ----------------------------- Name: John F. Crowley Title: President & CEO Address: 6 Cedar Brook Drive Cranbury, NJ 08512 |
ASSOCIATES ACCEPTANCE
The undersigned hereby accepts the foregoing Award Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
RECIPIENT
Date: 3/27/07 By: /s/ James E. Dentzer ---------------------------------- ----------------------------- Name: -- James E. Dentzer Address: -- SSN#: -- |
Exhibit 10.21
AMICUS THERAPEUTICS, INC.
RESTRICTED SHARE AWARD AGREEMENT
THIS RESTRICTED SHARE AWARD AGREEMENT (the "Award Agreement") is dated this 8th day of March, 2007, by and between Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), and Glenn P. Sblendorio (the "Recipient").
WHEREAS, on June 27, 2006, the Recipient was elected to the Board of Directors of Company, and the terms of such service were set forth in an offer letter (the "Offer Letter") of the same date;
WHEREAS, among the terms set forth in the Offer Letter was an award (the "Award") of 100,000 shares of common stock, $.01 par value (the "Common Stock") under the Amicus Therapeutics, Inc. 2002 Equity Incentive Plan (the "Plan"); and
WHEREAS, on September 13, 2006, the Company's Board of Directors ratified such Award;
NOW, THEREFORE, in consideration of the foregoing and the mutual obligations set forth herein, the Company and the Recipient agree as follows:
1. Award. The Award to the Recipient of restricted shares ("Restricted Shares") of Common Stock is subject to the terms and conditions set forth in this Restricted Share Award Agreement ("Award Agreement"), and the Plan. By executing this Award Agreement, the Recipient agrees to be bound by all the Plan's terms and conditions as if they had been set forth specifically herein. Capitalized terms used but not otherwise defined herein are defined in the Plan.
2. Specific Terms. The Recipient's Restricted Shares have the following terms:
Number of Restricted Shares Awarded: 100,000 Award Date: June 27, 2006 Vesting: The Restricted Shares shall vest as follows: 2,778 shares shall vest on the first day of each of the thirty-five (35) calendar months following the Award Date 2,770 shares shall vest and become exercisable on June 1, 2009 |
Forfeiture: In the event that the Recipient is no longer in service to the Company as a member of the Board of Directors, any unvested Restricted Shares (including dividends paid thereon), shall be automatically forfeited (the "Forfeited Shares") and returned to the Company for cancellation upon the effective day of the end of the Recipient's service. |
3. Issuance of Restricted Shares. The Company shall reflect the issuance in the Recipient's name of all the Restricted Shares subject to the Award. Such Restricted Shares shall be held in the custody of the Company or its designee for the Recipient's account. The Restricted Shares shall be subject to the restrictions set forth herein. Until applicable vesting restrictions lapse, any certificates that the Recipient receives for Restricted Shares will include a legend stating that they are subject to the restrictions set forth in the Plan and this Award Agreement.
4. Stockholder Rights; Unvested Restricted Shares.
a. The Company will hold the Restricted Shares in escrow until applicable vesting occurs, if ever. The Recipient must deliver to the Company, coincident with the execution and delivery of this Award Agreement, a stock power, endorsed in blank, for each certificate issued and representing the Restricted Shares to enable the Company to return and/or reissue such certificates as provided in this Award Agreement.
b. If an event causes the Recipient to forfeit any Restricted Shares, the stock powers will be used to return the certificates for the Forfeited Shares for cancellation. To the extent that a portion of a certificate represents Forfeited Shares and shares which are not Forfeited Shares, then the Company will reissue a certificate to the Recipient for such number of shares of Common Stock which do not represent Forfeited Shares and the stock powers shall be effective for such purpose.
c. Subject to this Award Agreement, as the owner of record of the Restricted Shares, the Recipient's name will be reflected as such on the Company's books and records, and the Recipient will be entitled to all rights of a Company stockholder, including voting and dividend rights with respect to the Restricted Shares; provided however, that dividends paid with respect to those Restricted Shares, whether in cash or stock, that have not vested at the time of the dividend payment shall themselves be subject to the same restrictions, vesting and forfeiture conditions that apply to the corresponding Restricted Shares.
5. Transfer Restrictions. No portion of the Restricted Shares may be
sold, transferred, assigned pledged or otherwise encumbered or disposed of by
the Recipient until such Restricted Shares have vested in accordance with
Section 1 hereof and then only in accordance with applicable securities laws
and any Company policy then in effect, should such policy then apply to the
Recipient. The Company shall not be required (i) to transfer on its books
any Restricted Shares that have been sold or otherwise transferred in violation of any provision of this Award Agreement, or (ii) to treat as owner of such shares or to accord the right to vote or pay dividends to any purchaser or other transferee to whom the Recipient has attempted to transfer such shares.
6. Right of First Refusal. If the Recipient wishes to sell or otherwise transfer any of the vested Restricted Shares, then at least 30 days prior to any such transfer, the Recipient shall give notice to the Company (the "Notice"). The Notice shall set forth (i) the number of Restricted Shares proposed to be sold or transferred; (ii) the date or proposed date of the sale or transfer; (iii) the identity of the proposed transferee; and (iv) the principal terms of the transfer, including the cash or other property or consideration to be received upon such transfer. The Company shall have the right, but not the obligation, to purchase all, but not less than all, of the Restricted Shares on the same terms specified in the Notice. Within 30 days after receipt of the Notice, the Company shall give written notice (the "Company Notice") to the Recipient stating whether or not it elects to exercise its right to purchase the Restricted Shares and a date and time for consummation of such purchase, not more than 10 days after the receipt by the Recipient of the Company Notice. Failure by the Company to deliver a Company Notice within such time period shall be deemed an election by the Company not to exercise its right to purchase the Restricted Shares. If the Company does not exercise its right to purchase the Restricted Shares, then the Recipient shall be free to transfer the Restricted Shares on the terms provided in the Notice. Any Restricted Shares not purchased within a period of 90 days of the Notice by the proposed transferee in the Notice may not be sold or otherwise disposed of until they are again offered to the Company under the procedures specified in this Section 6. The Company's right of first refusal described in this Section 6 shall terminate upon the closing of an initial public offering of the Company's Common Stock.
7. Restrictions on Public Sale by Recipient. In connection with any public
offering, the Recipient, if requested by the Company and the underwriters
managing such public offering, shall agree not to sell or otherwise transfer or
dispose of any Restricted Shares or other securities of the Company held by the
Recipient (other than those Restricted Shares or other securities, if any,
included in the public offering) for a specified period of time determined by
the Company and the underwriters following the effective date of a registration
statement with the Securities and Exchange Commission covering such public
offering (the "Registration Statement"); provided, however, that: (i) such
agreement shall not exceed 180 days from the effective date of such
registration; (ii) all other Restricted Holders enter into similar agreements;
provided, however, that all restrictions set forth in this Section 7 shall
terminate and be of no further force or effect if any other Restricted Holder
is released from, or otherwise no longer bound by, such restrictions; and (iii)
such agreement shall only apply to the first such Registration Statement
covering Common Stock of the Company to be sold on its behalf to the public in
an initial public offering of securities by the Company. For purposes of this
Section 7, "Restricted Holders" shall mean: (x) parties to that certain Third
Amended and Restated Investor Rights Agreement, dated September 13, 2006, by
and among the Company and the stockholders named therein, and (y) any officer
or director of the Company.
8. Effect of a Reorganization Event. Upon any Reorganization Event (as defined in the Plan), all shares of Restricted Stock which were unvested at the time of such Reorganization Event, shall immediately become vested.
9. Taxes and Withholding. No later than the date as of which an amount first becomes includible in the gross income of the Recipient for federal income tax purposes with respect to any Restricted Shares, the Recipient shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, all federal, state, local and foreign taxes that are required by applicable laws and regulations to be withheld with respect to such amount. Notwithstanding anything to the contrary contained herein, the Recipient may discharge this withholding obligation by directing the Company to withhold Restricted Shares with a value on a vesting date equal to the minimum withholding obligation in connection with such vesting. The Company shall, to the extent permitted by law, have the right to deduct any such taxes from the delivery of the Restricted Shares that gives rise to the withholding requirement.
10. Representations. The Recipient represents, warrants and covenants to the Company that:
a. The Restricted Shares are being acquired for the Recipient's account for investment only and not with a view to, or for sale in connection with, any distribution of the Restricted Shares in violation of the Securities Act of 1933, as amended, or any rule or regulation thereunder.
b. The Recipient has had such opportunity as he or she has deemed adequate to obtain from representatives of the Company such information as is necessary to permit the Recipient to evaluate the merits and risks of an investment in the Company.
c. The Recipient is able to bear the economic risk of holding such Restricted Shares for an indefinite period.
d. The Recipient understands that (i) the Restricted Shares will not be registered under the Securities Act and are "restricted securities" within the meaning of Rule 144 under the Securities Act; (ii) the Restricted Shares cannot be sold, transferred or otherwise disposed of unless they are subsequently registered under the Securities Act or an exemption from registration is then available; (iii) in any event, the exemption from registration under Rule 144 will not be available for at least one year and even then will not be available unless a public market then exists for the Company's Common Stock, adequate information concerning the Company is then available to the public, and other terms and conditions of Rule 144 are complied with; and (iv) the Company has no obligation or current intention to register any Restricted Shares acquired pursuant to this Award under the Securities Act.
e. The Recipient hereby represents that the Recipient has obtained appropriate legal or tax advice with respect to the tax consequences to the Recipient of the Award.
f. All stock certificates representing Restricted Shares issued to the Recipient shall have affixed thereto legends substantially in the following form, in addition to any other legends required by applicable state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL AND RESTRICTIONS ON RESALE CONTAINED IN A RESTRICTED SHARE AWARD AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
11. Consent of Spouse/Domestic Partner. If the Recipient has a spouse or domestic partner as of the date of this Award Agreement, the Recipient's spouse or domestic partner shall execute a Consent of Spouse/Domestic Partner in the form of Exhibit A hereto, effective as of the date hereof. Such consent shall not be redeemed to confer or convey to the spouse or domestic partner any rights in the Restricted Shares that do not otherwise exist by operation of law or the agreement of the parties. If the Recipient subsequent to the date hereof, marries, remarries or applies to the Company for domestic partnership benefits, the Recipient shall, not later than 60 days thereafter, obtain his or her new spouse/domestic partner's acknowledgement of and consent to the existence and binding effect of all restrictions contained in this Award Agreement by having such spouse/domestic partner execute and deliver a Consent of Spouse/Domestic Partner in the form of Exhibit A.
12. Miscellaneous.
a. This Award Agreement and any instruments delivered pursuant to this Award Agreement shall be construed, interpreted and governed in accordance with the laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
b. Any claim or controversy arising out of, or relating to, this Award Agreement, other than with respect to any confidentiality agreement between Recipient and the Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its National Rules for the Resolution of Employee Disputes. Such arbitration shall be held in New Jersey (or in such other location as the Company may at time be headquartered). The arbitration shall be conducted before a three-member panel. Within fifteen (15) days after the commencement of arbitration, each party shall select one person to act as arbitrator and the two selected shall select a third arbitrator within ten (10) days of their appointment. If the arbitrators selected by the parties are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the American Arbitration Association and shall be a member of the bar of the State of New Jersey actively engaged in the practice of employment law for at least ten years. The
arbitration panel shall apply the substantive laws of the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence shall apply to all aspects of the arbitration. The award shall be made within thirty days of the closing of the hearing. Judgment upon the award rendered by the arbitrator(s) may be entered by any Court having jurisdiction thereof.
c. This Award Agreement shall extend to, be binding upon and inure to the benefit of the Recipient, his legal representatives, his heirs, successors and assigns (subject, however, to the limitations set forth herein with respect to the assignment of the Award, the Restricted Shares or rights herein) and upon the Company, its successors and assigns regardless of any change in the business structure of the Company, be it through spinoff, merger, sale of stock, sale of assets or any other transaction and shall be construed in a manner that is consistent with the provisions of the Plan.
d. This Award Agreement contains the entire agreement of the parties with respect to the subject matter hereof. No waiver, modification or change of any provision of this Award Agreement shall be valid unless in writing and signed by both parties.
e. The waiver of any breach of any duty, term or condition of this Award Agreement shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any other duty, term or condition of this Award Agreement.
f. All notices pursuant to this Award Agreement will be in writing and
will be sent by personal delivery, telecopier, electronic mail or by prepaid
registered or certified mail, return receipt requested, addressed to the
parties hereto at the addresses set forth beneath their names on the signature
page hereto or to such other addresses as may hereafter be specified by like
notice in writing by either of the parties, and will be deemed given (i) upon
receipt if by personal delivery, (ii) on the day on which delivered if
delivered by telecopier (with confirmation of receipt (such receipt to be
established by acceptable protocol)), (iii) upon mailing if sent by registered
or certified mail or (iv) when transmitted if delivered by electronic mail
(with satisfactory evidence of transmittal (such evidence of transmittal to be
established by acceptable protocol)). Copies of all notices shall be sent to:
Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512 Attention:
VP, Human Resources and Leadership Development, Telecopier No. 609-662-2004.
g. The headings of the sections of this Award Agreement are inserted for convenience of reference only and will not be deemed to constitute a part hereof or to affect the meaning hereof.
h. This Award Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
By the signature of the Recipient below, along with the signature of the Company's authorized representative, the Recipient and the Company agree that the Restricted Shares are awarded under and governed by the terms and conditions of this Award Agreement and the Plan.
AMICUS THERAPEUTICS, INC.
Date: March 8, 2007 By: /s/ John F. Crowley ----------------------------------- Name: John F. Crowley Title: President & CEO |
Address: 6 Cedar Brook Drive Cranbury, NJ 08512
RECIPIENT'S ACCEPTANCE
The undersigned hereby accepts the foregoing Award Agreement and agrees to the terms and conditions thereof. The undersigned hereby acknowledges receipt of a copy of the Company's 2002 Equity Incentive Plan.
RECIPIENT
Date: March 8, 2007 By: /s/ Glenn P Sblendorio ----------------------------------- Name: Glenn P Sblendorio Address: 51 Bramshill Drive Mahwah, NJ 07430 |
SSN#: 000-00-0000
EXHIBIT A
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, Rosemary Sblendorio, spouse or domestic partner of Glenn Sblendorio, acknowledge that I have read the RESTRICTED SHARE AWARD AGREEMENT dated as of _______(the "Award Agreement") to which this Consent is attached as Exhibit A and that I know its contents. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Award Agreement. I am aware that by its provisions the Restricted Shares granted to my spouse/domestic partner pursuant to the Award Agreement are subject to forfeiture and that, accordingly, I may be required to forfeit to Amicus Therapeutics, Inc. (the "Company") any or all of the Restricted Shares of which I may become possessed as a result of a gift from my spouse/domestic partner or a court decree and/or any property settlement in any domestic litigation.
I hereby agree that my interest, if any, in the Restricted Shares subject to the Award Agreement shall be irrevocably bound by the Award Agreement and further understand and agree that any community property interest I may have in the Restricted Shares shall be similarly bound by the Award Agreement.
I agree to the vesting and forfeiture provisions described in the Award Agreement and I hereby consent to the forfeiture of the Restricted Shares to the Company by my spouse/domestic partner or my spouse/domestic partner's legal representative in accordance with the provisions of the Award Agreement. Further, as part of the consideration for the Award Agreement, I agree that at my death, if I have not disposed of any interest of mine in the Restricted Shares by an outright bequest of the Restricted Shares to my spouse or domestic partner, then the Company shall have the same rights against my legal representative to exercise its rights to the Restricted Shares with respect to any interest of mine in the Restricted Shares as it would have had pursuant to the Award Agreement if I had acquired the Restricted Shares pursuant to a court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I WILL WAIVE SUCH RIGHT.
Dated as of the ________ day of _________________,200_.
Date: _________________________ /s/ Rosemary Sblendorio _____________________ Rosemary Sblendorio _____________________ Print Name |
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, Rosemary Sblendorio, spouse or domestic partner of Glenn Sblendorio, acknowledge that I have read the RESTRICTED SHARE AWARD AGREEMENT dated as of ___________ (the "Award Agreement") to which this Consent is attached as Exhibit A and that I know its contents. Capitalized terms used and not defined herein shall have the meanings assigned to such terms in the Award Agreement. I am aware that by its provisions the Restricted Shares granted to my spouse/domestic partner pursuant to the Award Agreement are subject to forfeiture and that, accordingly, I may be required to forfeit to Amicus Therapeutics, Inc. (the "Company") any or all of the Restricted Shares of which I may become possessed as a result of a gift from my spouse/domestic partner or a court decree and/or any property settlement in any domestic litigation.
I hereby agree that my interest, if any, in the Restricted Shares subject to the Award Agreement shall be irrevocably bound by the Award Agreement and further understand and agree that any community property interest I may have in the Restricted Shares shall be similarly bound by the Award Agreement.
I agree to the vesting and forfeiture provisions described in the Award Agreement and I hereby consent to the forfeiture of the Restricted Shares to the Company by my spouse/domestic partner or my spouse/domestic partner's legal representative in accordance with the provisions of the Award Agreement. Further, as part of the consideration for the Award Agreement, I agree that at my death, if I have not disposed of any interest of mine in the Restricted Shares by an outright bequest of the Restricted Shares to my spouse or domestic partner, then the Company shall have the same rights against my legal representative to exercise its rights to the Restricted Shares with respect to any interest of mine in the Restricted Shares as it would have had pursuant to the Award Agreement if I had acquired the Restricted Shares pursuant to a court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I WILL WAIVE SUCH RIGHT.
Dated as of the ___________ day of ________________________, 2007.
/s/ Rosemary Sblendorio _______________________________________ Print Name Rosemary Sblendorio |
EXHIBIT 10.22
LEASE AGREEMENT
BY AND BETWEEN:
Cedar Brook II Corporate Center, L.P.
"Landlord"
- and -
Amicus Therapeutics, Inc.
"Tenant"
PREMISES: 5 Cedar Brook Drive
Cranbury, NJ 08512
DATED: July 31, 2006
TABLE OF CONTENTS
1. ......................................................LEASED PREMISES 1 2. ........................................................TERM OF LEASE 4 3. ..................................................TENANT IMPROVEMENTS 4 4. .................................................................RENT 4 5. .....................................PARKING AND USE OF EXTERIOR AREA 6 6. ..................................................................USE 7 7. .............................................REPAIRS AND MAINTENANCE 7 8. ............................COMMON AREA EXPENSES TAXES AND INSURANCE 8 9. ................................................................SIGNS 12 10. ...........................................ASSIGNMENT AND SUBLETTING 12 11. ...................................................FIRE AND CASUALTY 14 12. ..........................COMPLIANCE WITH LAWS RULES AND REGULATIONS 16 13. ..............................................INSPECTION BY LANDLORD 18 14. ...................................................DEFAULT BY TENANT 19 15. ..................................LIABILITY OF TENANT FOR DEFICIENCY 21 16. .............................................................NOTICES 22 17. ..............................................NON-WAIVER BY LANDLORD 22 18. ................RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS 22 19. ...........................................NON-LIABILITY OF LANDLORD 23 20. .............................................RESERVATION OF EASEMENT 23 21. .............................................STATEMENT OF ACCEPTANCE 24 22. .......................................................FORCE MAJEURE 24 23. ...................................STATEMENTS BY LANDLORD AND TENANT 24 |
24. ........................................................CONDEMNATION 25 25. .................................................LANDLORD'S REMEDIES 25 26. .....................................................QUIET ENJOYMENT 26 27. ...............................................SURRENDER OF PREMISES 26 28. ...........................................................INDEMNITY 27 29. ............................................BIND AND CONSTRUE CLAUSE 28 30. ..........................................................INCLUSIONS 28 31. .......................................DEFINITION OF TERM "LANDLORD" 28 32. .....................................COVENANTS OF FURTHER ASSURANCES 29 33. ..............................................COVENANT AGAINST LIENS 29 34. .......................................................SUBORDINATION 29 35. .............................................EXCULPATION OF LANDLORD 29 36. ............................................................NET RENT 30 37. ............................................................SECURITY 30 38. ...........................................................BROKERAGE 30 39. ........................................................LATE CHARGES 30 40. ......................................................PRESS RELEASES 31 41. ................................................WAIVER OF JURY TRIAL 31 42. ..................................................LAWS OF NEW JERSEY 31 43. .....................................................OFAC COMPLIANCE 31 |
AGREEMENT, made July 31, 2006, between Cedar Brook II Corporate Center, L.P., 1000 Eastpark Blvd., Cranbury, New Jersey 08512, "Landlord"; and Amicus Therapeutics, Inc., 6 Cedar Brook Drive, Cranbury, NJ 08512, "Tenant".
WITNESSETH:
WHEREAS, the Landlord intends to lease to the Tenant a portion of 5 Cedar Brook Drive, Cranbury, NJ 08512 ("Building") constituting a portion of the office/industrial park known as Cedar Brook Corporate Center ("Office Park"); and
WHEREAS, a portion of the Building is currently occupied by a tenant (the "Subtenant") whose lease is expiring on December 31, 2006 ("Subleased Space"); and
WHEREAS, the parties hereto wish to mutually define their rights, duties and obligations in connection with the Lease;
NOW THEREFORE, in consideration of the promises set forth herein, the Landlord leases unto the Tenant and the Tenant rents from the Landlord the leased premises described in Paragraph 1, and the Landlord and Tenant do hereby mutually covenant and agree as follows:
1. LEASED PREMISES
1.1 The initial space leased by Tenant shall consist of 7,873 rentable square feet of office and laboratory space ("Initial Space").
1.2 The Tenant shall also occupy the Subtenant's space, which consists of 9,248 rentable square feet of office and laboratory space ("Subleased Space"), upon delivery of that space vacant and broom clean by Landlord.
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
1.3 The Landlord and Tenant acknowledge that the Subtenant's lease for the Subleased Space expires on December 31,2006, but the Landlord shall make every effort to deliver the Subleased Space to the Tenant as soon as possible. Upon Landlord's delivery of the Subleased Space to Tenant in accordance with the terms of this subparagraph, the Initial Space and the Subleased Space shall be referred to herein as the Leased Premises. Tenant shall agree to occupy the Subleased Space provided Landlord delivers the Subleased Space to Tenant in vacant and broom clean condition, with all utilities in working order. Landlord shall notify Tenant, in writing, when the Subleased Space is available and confirming the date of Tenant's possession of the Subleased Space ("Subleased Space Commencement Date").
1.4 In the event that the Subleased Space Commencement Date has not occurred on or before February 28,2007, the Tenant shall have the right to terminate this Lease by providing Landlord with written notice of such termination within 10 days, unless the parties mutually agree, in writing, to extend said date. Should Tenant terminate the Lease under this provision, Tenant shall be fully and forever released and discharged from any and all obligations, covenants or liabilities of whatsoever kind or nature in law or equity or otherwise arising out of or in connection with the Lease.
1.5 Until the Subleased Space Commencement Date all references in this Lease to the Leased Premises shall only refer to the Initial Space.
1.6 From and after the Subleased Space Commencement Date, the Leased Premises shall consist of 17,121 square feet as measured from outside of exterior walls to center line of common walls (the "Common Measurement"), and with all easements, tenements, appurtenances, hereditaments, rights and privileges appurtenant thereto. Upon delivery of the Subleased Space to the Tenant, Tenant shall have the right, at any time during the first 2 weeks after delivery, to engage an independent architect or surveyor to measure the actual floor area of the Leased Premises (the "Floor Area"). Tenant's architect
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
or surveyor shall determine the Common Measurement of the Floor Area, and if the floor area of the Initial Space or Subleased Space is less or more than the square foot measurement set forth herein by more than 3%, Tenant's Base Rent shall be proportionately adjusted. In the event of any adjustment of Tenant's Base Rent, such adjustment in Floor Area and new Base Rent amount shall be set forth in a letter agreement within 10 days of the determination of the Floor Area as provided herein.
1.7 The Initial Space and the Subleased Space are depicted on
Exhibit "A" attached hereto. Tenant acknowledges that there are no demising
walls between the Initial Space and the Subleased Space and that it shall share
bathrooms, lobby area and the cafeteria with the tenant occupying the Subleased
Space until such time as that tenant vacates. Tenant acknowledges that Landlord
has paid $15,000 to Subtenant, on behalf of Tenant, in order to secure the
Tenant's right to share such space ("Access Payment"), and Landlord has received
a representation from the Subtenant, attached hereto as Exhibit "X", that such
Access Payment guarantees that Tenant shall have the non-exclusive, absolute,
unobstructed right to enter into the Subleased Space in order to enter, use and
take full advantage of the bathrooms, lobby area and cafeteria at all times
during the Term of this Lease ("Access Right"). Tenant shall reimburse Landlord,
with interest, for such amount as set forth in paragraph 4.2(c). Tenant shall
have the option to install, at its own cost and subject to Landlord's reasonable
approval, temporary panels to provide Tenant with direct access to the
bathrooms, lobby area and cafeteria. Tenant shall provide Landlord with a
complete breakdown of such costs ("Temporary Access Costs") in the event
Landlord is required to refund such costs to Tenant as set forth in paragraph
4.3. Tenant shall also have the right to use all common areas of the Office Park
in a similar manner to other Office Park tenants.
2. TERM OF LEASE
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
The term of the Lease shall be 3 years, to commence on the Commencement Date and to end on the day before the 3rd anniversary of the Commencement Date. The Commencement Date is projected to be August 7, 2006.
3. TENANT IMPROVEMENTS
3.1 The Landlord constructed the Leased Premises for a prior tenant. Tenant agrees to accept the Leased Premises in their "AS IS" condition, except that Landlord will install VCT flooring, at its sole expense, in the unfinished laboratory space depicted on Exhibit "A".
3.2 In the event Tenant desires, at any time during the Lease term, to make any non-structural improvements or modifications to the Leased Premises ("Tenant Improvements") it shall obtain the consent of Landlord, which consent shall not be unreasonably withheld, conditioned or delayed. Tenant shall be responsible for the creation of all plans and specifications ("Plans") for the Tenant Improvements. Landlord will perform all such work necessary to execute the Plans. Landlord covenants to use its best efforts to complete the construction of any Tenant Improvements in a timely and cost efficient manner, and to provide Tenant with accurate estimates of both cost and time prior to the commencement of the construction. Landlord's charge for the cost of constructing Tenant Improvements shall be commercially reasonable. All costs of Tenant Improvement shall be borne by Tenant, unless Landlord incurs additional costs due to its acts, omissions or delays, provide such delays are not due to events beyond Landlord's control, and such costs shall be paid within 30 days of receipt of an invoice from Landlord. In no event shall Landlord utilize any materials in Tenant Improvements that are, or may reasonably become, a "hazardous substance", as hereinafter defined.
4. RENT
4.1 Tenant's base rent shall be $18.00 per square foot per year ("Base Rent"). The Base Rent shall be payable in advance in equal monthly installments on the first day of each calendar
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
month. Within 30 days of occupancy of the Initial Space and the Subleased Space the parties will enter into a letter agreement setting forth the actual amount of the monthly Base Rent to be paid by Tenant based either on the rentable square feet set forth in paragraph 1 or the actual Floor Area.
4.2 Tenant shall pay the following which shall be referred to herein as "Additional Rent":
(a) A fixed fee per square foot per year for the Common Area Expenses (as hereafter defined).
(b) Its proportionate share of the real estate taxes ("Proportionate Share"), which shall be adjusted as of each January 1st during the term, based on the relationship between the rentable square footage leased to Tenant and the rentable square footage of building construction completed and occupied in the Office Park. In no event shall the Tenant's proportionate share increase due to the vacancy of previously occupied space in the Office Park.
(c) The sum of $2,580.00 per month, which includes interest, for the first 6 months of the term in order to reimburse Landlord for the Access Payment paid to Subtenant as set forth in paragraph 1.4. The obligation of Tenant to reimburse the Landlord for the Access Payment shall survive in the event this Lease is terminated prior to the date the Access Payment is paid in full. In the event the Lease is terminated prior to the final payment of the Access Payment, Tenant agrees to pay Landlord the remaining balance in a lump sum on the date of termination.
(d) Any other charges as provided in this Lease. The Base Rent and Additional Rent shall be referred to hereafter as "Rent".
4.3 In the event Tenant enters into a lease with Landlord for the entire building at 9 Cedar Brook Drive, Cranbury, NJ (the "Cedar Brook Lease") at any time during the Lease term then, upon occupancy and commencement of payment of the rent at 9 Cedar Brook Drive, this Lease shall
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
expire, terminate and be of no further force and effect. Tenant shall then be entitled to receive a refund for certain amounts paid hereunder (the "Cedar Brook Refund"). The amount of the Cedar Brook Refund shall be calculated as if the Base Rent under this Lease had been $15.50 per square foot instead of $18.00 per square foot, and shall also include a refund of the Temporary Access Costs and $7,500 of the Access Payment.
4.4 Tenant covenants to pay the Rent in lawful money of the United States which shall be legal tender for the payment of all debts, public and private, at the time of payment. Such Rent shall be paid to Landlord at its office address hereinabove set forth, or at such other place as Landlord may, from time to time, designate by notice to Tenant.
4.5 The Rent shall be payable by Tenant without any set-off or deduction of any kind or nature whatsoever and without notice or demand. The sum of all increases required to be paid as Rent in accordance with this Lease, shall be paid to Landlord within 10 days following the giving of notice hereof by Landlord of such increases.
5. PARKING AND USE OF EXTERIOR AREA
The Tenant shall have the right to use parking spaces on a non-exclusive basis in common with other tenants of the Building. Landlord reserves the right to allocate specific parking spaces if it chooses. The Landlord and Tenant mutually agree that they will not block, hinder or otherwise obstruct the access driveways and parking areas so as to impede the free flow of vehicular traffic on the property. In connection with the use of the loading platforms, if any, Tenant agrees that it will not use the same so as to unreasonably interfere with the use of the access driveways and parking areas. Tenant shall not store trailers or other vehicles on any portion of the access driveways or parking areas, and may not utilize any portion of the land or Building outside of the Leased Premises for any purpose unless consented to in advance by Landlord.
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
6. USE
The Tenant covenants and agrees to use and occupy the Leased Premises only as office and laboratory space, which use is expressly subject to all applicable zoning ordinances, rules and regulations of any governmental instrumentalities, boards or bureaus having jurisdiction thereof. Tenant's use of the Leased Premises shall not interfere with the peaceable and quiet use and enjoyment by other tenants at their respective leased premises located at the Building or in the Office Park, nor shall Tenant's activities cause Landlord to be in default under its leases with such other tenants.
7. REPAIRS AND MAINTENANCE
7.1 Tenant shall generally maintain and repair the Leased Premises, to the extent Tenant has possession of the Leased Premises, in a good and workmanlike manner, and shall, at the expiration of the term, deliver the Leased Premises in a condition substantially similar to the condition it was received, provided that the Subleased Space, including the bathrooms, lobby and cafeteria shall be returned in the condition substantially similar to its condition of the Subleased Space Commencement Date, damages by fire or casualty, the elements and ordinary wear and tear excepted. Tenant covenants and agrees that it shall not cause or permit any waste, damage or disfigurement to the Leased Premises, or any overloading of the floors, to the extent that Tenant is in possession of the Leased Premises. Tenant shall maintain and make all repairs to the floor surface, plumbing and electrical systems including all ballasts and fluorescent fixtures located within the Leased Premises, and the HVAC system servicing the laboratory. Landlord shall be responsible for repairs necessary to the roof, exterior load-bearing walls, structural systems, the HVAC system servicing the office areas and the electric and plumbing systems to the point where they enter the Leased Premises, unless repair is necessitated by any negligent act of Tenant, or its agents, employees or contractors. Notwithstanding anything contained herein to the
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
contrary, any repair or maintenance necessitated by the negligent acts or omissions of the Landlord shall be the responsibility of the Landlord, at its sole cost and expense.
7.2 The Tenant shall, at its own cost and expense, pay all utility meter and service charges, including telephone, cable service, gas and electric servicing the Leased Premises. Landlord shall have the option to install, at its own cost, a separate water meter and invoice Tenant directly for its water/sewer usage. To the extent Tenant has control of the temperature in the Leased Premises Tenant agrees to maintain the Leased Premises at a minimum temperature of 45 degrees to prevent the freezing of domestic water and sprinkler pipes and no higher than 78 degrees to prevent humidity and mildew, provided that in no event shall Tenant be held responsible for maintaining the temperature in the Sublease Space until the Subleased Space Commencement Date. Tenant shall not store any items outside the Leased Premises, unless such storage has been agreed to by Landlord, and shall deliver its garbage and recyclables to the central receiving area on the lot. Tenant shall dispose of all hazardous/medical waste with an approved hauler at its own cost.
7.3 Landlord does not warrant that any services Landlord or any public utilities supply will not be interrupted, provided that Landlord shall make every effort to ensure that such services within Landlord's control are not interrupted.
8. COMMON AREA EXPENSES, TAXES AND INSURANCE
8.1 The Tenant shall pay to the Landlord, monthly, as Additional Rent the cost of the following items all of which shall be known as Common Area Expenses:
(a) The costs incurred by the Landlord for the operation, maintenance or repair of the following items in the Office Park, which costs shall be fixed at $2.03 per square foot per year for the calendar year 2006, and shall increase by 3% each January 1st commencing on January 1, 2007 ("Operating Costs"):
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
(1) lawns and landscaping;
(2) standard water/sewer usage and standby sprinkler charges;
(3) exterior and interior common area Building lighting;
(4) exterior sewer lines;
(5) exterior utility lines;
(6) repair and maintenance of any signs serving the Office Park;
(7) snow removal;
(8) standard garbage disposal and recycling;
(9) general ground maintenance;
(10) parking lot, driveways and walkways;
(11) maintenance contracts for the roof;
(12) pest control;
(13) central station monitoring for fire sprinkler system; and
(14) other ordinary and actual maintenance expenses normally incurred by Landlord relating to the Building and common areas of the Office Park;
The $2.03 per square foot per year, as increased annually, shall include the cost of the annual insurance premiums charged to the Landlord for insurance coverage which insure the buildings in the Office Park. The insurance shall be for the full replacement value of all insurable improvements with any customary extensions of coverage including, but not limited to, vandalism, malicious mischief, sprinkler damage and comprehensive liability, and insurance for one year's rent. The Landlord shall maintain said insurance in effect at all times hereunder. Any increase in the insurance premiums due to a change in rating of the Building which is solely attributable to Tenant's use, or solely due to special
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Tenant equipment, shall be paid entirely by the Tenant, provided that Landlord provide Tenant adequate evidence that such increase is based solely on Tenant's actions. Tenant expressly acknowledges that Landlord shall not maintain insurance on Tenant's furniture, fixtures, machinery, inventory, equipment or other personal property. Tenant shall at all times, at its own cost and expense, carry sufficient "All Risk" property insurance on a replacement cost basis to avoid any coinsurance penalties in applicable policies on all of Tenant's furniture, furnishings, fixtures, machinery, equipment and installations as well as on any alterations or improvements made to the Leased Premises by Tenant at its own cost and expense subsequent to the Commencement Date. Such coverage is to include property undergoing additions and alterations, and shall cover the value of equipment and supplies awaiting installations. On an annual basis, Tenant shall furnish Landlord with certificates of the existence of such insurance; and
(b) Tenant's Proportionate Share of the real estate and personal property taxes assessed against the Office Park for land, building and improvements, along with any levy for the installation of local improvements affecting the Office Park assessed by any governmental body having jurisdiction thereof, which taxes and levies are estimated to be $1.50 per square foot per year for the first year, provided, however, that Tenant shall be entitled to Tenant's Proportionate Share of any refund obtained by Landlord with respect to any taxes. Tenant is advised that the municipality is currently reassessing property in the Township and real estate taxes for subsequent years cannot be estimated. The real estate tax obligation of the Tenant shall include any tax or imposition for parking lot usage which may be levied by any governmental body having jurisdiction thereof. In addition to its Proportionate Share of the above items, Tenant shall pay directly all real estate taxes assessed by the municipality on its Tenant Improvements. Anything in this Section 8.l(b) or elsewhere in this Lease to the contrary notwithstanding, Tenant shall not be obligated to pay any part of (1) any taxes on the income of the Landlord or the holder of an underlying mortgage and any taxes on the income of the lessor under any
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
underlying lease, (2) any corporation, unincorporated business or franchise
taxes, (3) any estate gift, succession or inheritance taxes, (4) any capital
gains, mortgage recording or transfer taxes, (5) any taxes or assessments
attributable to any sign attached to, or located on, the Building or the land or
(6) any similar taxes imposed on the Landlord, the holder of any underlying
mortgage or the lessor under any underlying lease; and
(c) A management fee of 3% of the Tenant's Base Rent.
8.2 Tenant's Share of Common Area Expenses for any calendar year, part of which falls within the term of this Lease and part of which does not, shall be appropriately prorated, based on 12 months of 30 days each. Additional Rent charges shall be proportionately pro-rated based on 12 months of 30 days each should Tenant take possession of the Subleased Space on a day other than January 1, 2007.
8.3 If at any time during the term of this Lease the method or scope of taxation prevailing at the commencement of the lease term shall be altered, Tenant's Proportionate Share of such substituted tax or imposition shall be payable and discharged by the Tenant in the manner required pursuant to the law which shall authorize such change.
8.4 The Tenant covenants and agrees that it will, at its sole cost and expense, carry liability insurance covering the Leased Premises in the minimum amount of $2,000,000.00 per occurrence, $4,000,000.00 aggregate limit and a minimum amount of $500,000.00 for property damage. The Tenant shall add the Landlord as an additional insured on such policy and will furnish Landlord with a certificate of said liability insurance prior to the Commencement Date and annually thereafter. The certificate shall contain a clause that the policy will not be canceled except on 10 days written notice to the Landlord.
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
8.5 The parties covenant and agree that the insurance policies required to be furnished in accordance with the terms and conditions of this Lease, or in connection with insurance policies which they obtain insuring such insurable interest as Landlord or Tenant may have in its own properties, whether personal or real, shall expressly waive any right of subrogation on the part of the insurer against the Landlord or Tenant. Landlord and Tenant each waives all right of recovery against the other, its agents or employees for any loss, damage or injury of any nature whatsoever to property or person for which the waiving party is required by this Lease to carry insurance.
9. SIGNS
Landlord will provide a sign monument listing all of the tenants in the Building. At its sole expense the Tenant shall have the right to install on the interior doors at the Leased Premises, only such signs as are required by Tenant for the purpose of identifying the Tenant.
10. ASSIGNMENT AND SUBLETTING
10.1 The Tenant may not assign or sublet the Leased Premises without Landlord's consent, which consent shall be within the sole discretion of Landlord. The Tenant may not assign or sublet the Leased Premises to an existing tenant in the Office Park or assign or sublease any space in the Office Park from another tenant, without Landlord's consent, which consent shall be within the sole discretion of Landlord. Tenant shall advise the Landlord in writing, by certified mail, return receipt requested of its desire to assign or sublease (the "Assignment Notice") and Landlord shall have 30 days from receipt of such notice to notify Tenant whether it rejects or consents to the assignment or sublease. Landlord shall also have the option to elect to re-capture the Leased Premises and terminate the Lease, and shall so notify Tenant within 30 days of receipt of the Assignment Notice. If Landlord elects to recapture the Leased Premises, Tenant shall surrender the Leased Premises no later than 90 days after
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Landlord's written notice of its election to recapture, and Tenant shall be released from any obligations of this Lease as if it had expired on the day of such surrender.
10.2 The Landlord's consent shall not be required and the terms and conditions of Paragraph 10.1 shall not apply as to Landlord's right to recapture if the Tenant assigns or subleases the Leased Premises to a parent, subsidiary, affiliate or other company into which Tenant is merged or reorganized, or with which Tenant is consolidated, or to the purchaser of all or substantially all of the assets of Tenant (the "Permitted Transferee").
10.3 In connection with any permitted assignment or subletting, (i) the Tenant shall pay monthly to the Landlord 50% of any increment in rent received by Tenant per square foot over the Rent then in effect during the year of the assignment or subletting ("Excess Rent"), which payment shall be made monthly together with the required Rent hereunder; and (ii) if Tenant receives any consideration or value for such assignment or subletting, Landlord shall be paid 50% of any such consideration or value within 10 days after receipt of the same by Tenant. Notwithstanding anything to the contrary contained herein, in no event shall the Landlord be entitled to any consideration resulting from the sale of Tenant's business, Tenant goodwill, or any other consideration not explicitly, directly and solely related to the assignment or subletting of the Leased Premises. Excess Rent shall be defined as the rent Tenant receives under the sublease or assignment, over and above the Base Rent Tenant must pay to the Landlord under this Lease, less tenant fit-up and broker's commissions actually paid by Tenant. As a condition hereunder, Tenant warrants and represents to Landlord that it will furnish to Landlord a copy of all pertinent documents with respect to any such assignment or subletting so as to establish Tenant's obligation to Landlord hereunder.
10.4 In the event of any assignment or subletting permitted by the Landlord, the Tenant shall remain and be directly and primarily responsible for payment and performance of the within
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Lease obligations, and the Landlord reserves the right, at all times, to require and demand that the Tenant pay and perform the terms and conditions of this Lease. In the case of a complete recapture, Tenant shall be released from all further liability with respect to the recaptured space. No such assignment or subletting shall be made to any Tenant who shall occupy the Leased Premises for any use other than that which is permitted to the Tenant, or approved in writing by Landlord, or for any use which may be deemed inappropriate for the Building or extra hazardous, or which would in any way violate applicable laws, ordinances or rules and regulations of governmental boards and bodies having jurisdiction.
11. FIRE AND CASUALTY
11.1 In case of any damage to or destruction of any portion of the Building of which the Leased Premises is a part by fire or other casualty occurring during the term of this Lease (or prior thereto), which shall render at least 1/3 of the floor area of the Leased Premises or the building untenantable or unfit for occupancy, which damage cannot be repaired within 180 days from the happening of such casualty, using reasonable diligence ("Total Destruction") then the term hereby created shall, at the option of the Landlord, upon written notice to the Tenant within 15 days of such fire or casualty, cease and become null and void from the date of such Total Destruction. In such event the Tenant shall immediately surrender the Leased Premises to the Landlord and this Lease shall terminate. The Tenant shall only pay Rent to the time of such Total Destruction. However, in the event of Total Destruction if the Landlord shall elect not to cancel this Lease within the 15 day period the Landlord shall repair and restore the Building to substantially the same condition as it was prior to the damage or destruction, with reasonable speed and dispatch. The Rent shall not be accrued after said damage or while the repairs and restorations are being made, but shall recommence immediately after the Leased Premises are substantially restored as evidenced by the issuance of a CO/CA by municipal authorities. In any case where Landlord must restore, consideration shall be given for delays under the Force Majeure
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
paragraph in this Lease. Whether or not this Lease has been terminated as a result of a casualty, in every instance, all insurance proceeds payable as a result of damage or destruction to the Building shall be paid to Landlord as its sole and exclusive property.
11.2 In the event of any other casualty which shall not be tantamount to Total Destruction the Landlord shall repair and restore the Building and the Leased Premises to substantially the same condition as they were prior to the damage or destruction, with reasonable speed and dispatch. The Rent shall abate or shall be equitably apportioned as to any portion of the Leased Premises which shall be unfit for occupancy by the Tenant, or which cannot be used by the Tenant to conduct its business. The Rent shall recommence immediately upon substantial restoration of the Leased Premises as evidenced by the issuance of a CO/CA by municipal authorities.
11.3 In the event of any casualty caused by an event which is not covered by Landlord's insurance policy; the Landlord may elect to treat the casualty as though it had insurance or it may terminate the Lease. If it treats the casualty as though it had insurance then the provisions of this paragraph shall apply. The Landlord shall serve a written notice upon the Tenant within 15 days of the casualty specifying the election which it chooses to make.
11.4 In the event the Landlord rebuilds, the Tenant agrees, at its cost and expense, to forthwith remove any and all of its equipment, fixtures, stock and personal property in order to permit Landlord to expedite the construction. The Tenant shall assume at its sole risk the responsibility for damage to or security of such fixtures and equipment in the event that any portion of the Building area has been damaged and is not secure.
12. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
12.1 (a) The Tenant agrees that upon acceptance and occupancy of the Leased Premises, it will, at its own cost and expense, comply with all statutes, ordinances, rules, orders,
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
regulations and requirements of the Federal, State and Municipal governments arising from the operations of Tenant at the Leased Premises. The Tenant also agrees that it will not commit any nuisance or excessive noise, and will dispose of all garbage and waste in connection with its operations so as to avoid unreasonable emissions of dirt, fumes, odors or debris. Tenant has advised Landlord that it uses blood borne pathogens in the normal course of its business. Landlord has no objection to such use, provided Tenant complies with all laws, rules and regulations regarding the use and disposal of such blood borne pathogens.
(b) The Tenant agrees, at its own cost and expense, to comply with such regulations or requests as may be required by the fire or liability insurance carriers providing insurance for the Leased Premises, and the Board of Fire Underwriters, in connection with Tenant's use and occupancy of the Leased Premises.
12.2 In case the Tenant shall fail to comply with all material provisions of the aforesaid statutes, ordinances, rules, orders, regulations and requirements then the Landlord may, after 15 days' notice (except for emergency repairs, which may be made immediately), enter the Leased Premises and take any reasonable actions to comply with them, at the cost and expense of the Tenant. The cost thereof shall be added to the next month's rent and shall be due and payable as such, or the Landlord may deduct the same from the balance of any sum remaining in the Landlord's hands. This provision is in addition to the right of the Landlord to terminate this Lease by reason of any default on the part of the Tenant. However, in the event that all necessary repairs are made by Tenant, or the Tenant has commenced repairs with 15 days of notice, the initial failure to comply with the aforesaid laws and regulations shall not constitute an event of default.
12.3 Tenant expressly covenants and agrees to indemnify, defend and save the Landlord harmless against any claim, damage, liability, cost, penalties, or fines which the Landlord may
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
suffer as a result of air, ground or water pollution directly caused by the Tenant in its use of the Leased Premises. The Tenant covenants and agrees to notify the Landlord immediately of any claim or notice served upon it with respect to any claim that the Tenant is causing air, ground or water pollution; and the Tenant shall take immediate steps to halt, remedy or cure any pollution of air, ground or water caused by the Tenant by its use of the Leased Premises.
12.4 Tenant expressly covenants and agrees to fully comply with the provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:lK-6, et seq.) "ISRA", and its regulations, prior to the termination of the Lease or at any time that any action of the Tenant triggers the applicability of ISRA. In particular, the Tenant agrees that it shall comply with the provisions of ISRA in the event of any "closing, terminating or transferring" of Tenant's operations, as defined by and in accordance with the regulations. In the event evidence of such compliance is not delivered to the Landlord prior to surrender of the Leased Premises by the Tenant to the Landlord, it is understood and agreed that the Tenant shall be liable to pay to the Landlord an amount equal to one and one-half times the Base Rent then in effect, together with all applicable Additional Rent from the date of such surrender until such time as evidence of compliance with ISRA has been delivered to the Landlord, and together with any costs and expenses incurred by Landlord in enforcing Tenant's obligations under this paragraph. Evidence of compliance, as used herein, shall mean a "letter of non-applicability" issued by the New Jersey Department of Environmental Protection ("NJDEP"), an approved "negative declaration" or a "remediation action plan" which has been fully implemented and approved by NJDEP, or other document evidencing compliance as may then be prescribed by applicable regulations. Evidence of compliance shall be delivered to the Landlord, together with copies of all submissions made to the NJDEP, including all environmental reports, test results and other supporting documentation. In addition to the above, Tenant agrees that it shall cooperate with Landlord in the event ISRA is applicable to any portion of the property of which the
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Leased Premises are a part. In such case, Tenant agrees that it shall fully cooperate with Landlord in connection with any information or documentation which may be requested by the NJDEP. In the event that any remediation of the Property is required in connection with the conduct by Tenant of its business at the Leased Premises, Tenant expressly covenants and agrees that it shall be responsible for that portion of the remediation which is directly attributable to the Tenant's operation. Tenant hereby represents and warrants that its North American Industrial Classification System Code is 325412, and that Tenant shall not generate, manufacture, refine, transport, treat, store, handle or dispose of "hazardous substances" as the same are defined under ISRA and the regulations promulgated pursuant thereto, except in strict compliance with all governmental rules, regulations and procedures. Tenant hereby agrees that it shall promptly inform Landlord of any change in its NAICS number and obtain Landlord's consent for any change in the nature of the business to be conducted in the Leased Premises. The within covenants shall survive the expiration or earlier termination of the Lease term.
13. INSPECTION BY LANDLORD
The Tenant agrees that the Landlord shall have the right to enter into the Leased Premises at all reasonable hours for the purpose of examining the same upon reasonable advance notice of not less than 24 hours (except in the event of emergency), or to make such repairs as are necessary. Any repair shall not unduly interfere with Tenant's use of the Leased Premises.
14. DEFAULT BY TENANT
14.1 Each of the following shall be deemed a default by Tenant and a breach of this Lease:
(a) (1) filing of a petition by the Tenant for adjudication as a bankrupt, or for reorganization, or for an arrangement under any federal or state statute, except in a Chapter 11 Bankruptcy where the Rent stipulated herein is being paid
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
and the terms of the Lease are being complied with;
(2) dissolution or liquidation of the Tenant;
(3) appointment of a permanent receiver or a permanent trustee of all or substantially all of the property of the Tenant, if such appointment shall not be vacated within 90 days, provided the Rent stipulated herein is being paid and the terms of the Lease are being complied with, during said 90 day period;
(4) taking possession of the property of the Tenant by a governmental officer or agency pursuant to statutory authority for dissolution, rehabilitation, reorganization or liquidation of the Tenant if such taking of possession shall not be vacated within 90 days, provided the Rent stipulated herein is being paid and the terms of the Lease are being complied with, during said 90 day period;
(5) making by the Tenant of an assignment for the benefit of creditors; and
(6) abandonment, desertion or vacation of the Leased Premises by the Tenant.
(b) Default in the payment of the Rent herein reserved or any part thereof, which continues for 10 days after written notice to Tenant.
(c) A default in the performance of any other covenant or condition which this Lease requires the Tenant to perform, for a period of 15 days after notice. However, no default on the part of Tenant shall be deemed to exist if it diligently commences efforts to rectify same and Landlord is indemnified against loss or liability arising from the default.
14.2 In the event of any default set forth above, Landlord may serve written notice upon the Tenant electing to terminate this Lease upon a specified date not less than 10 days after the date of serving such notice and this Lease shall then expire on the date so specified as if that date had been
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
originally fixed as the expiration date of the term herein granted, provided that if Tenant cures such default within said 10 day period, then the election to terminate shall be null and void.
14.3 In case this Lease shall be terminated due to Tenant's default as set forth above, Landlord or its agents may, immediately or any time thereafter, re-enter and resume possession of the Leased Premises or such part thereof, and remove all persons and property therefrom, either by summary proceedings or a suitable action or proceeding at law, without being liable for any damages therefor. No re-entry by Landlord shall be deemed an acceptance of a surrender of this Lease. However, if the Tenant is in default and vacates the Leased Premises, or is dispossessed, and fails to remove any property, machinery, equipment and fixtures or other property within 15 days of the date Landlord sends a written notice to the last known address of the Tenant, then the property, machinery, equipment and fixtures or other property left at the Leased Premises shall, at the option of the Landlord, be conclusively presumed to be abandoned and may be disposed of by the Landlord without accounting to Tenant for any of the proceeds. The Tenant shall be liable for any damage which it causes in the removal of said property from the Leased Premises.
14.4 In case this Lease shall be terminated, due to Tenant's default as set forth above Landlord may relet the whole or any portion of the Leased Premises for any period equal to or greater or less than the remainder of the then current term, for any sum which it may deem reasonable, to any tenant which it may deem suitable and satisfactory, and for any use and purpose which it may deem appropriate. In connection with any such lease Landlord may make such changes in the character of the improvements on the Leased Premises as Landlord may determine to be appropriate or helpful in effecting such lease and may grant concessions or free rent. Landlord shall make reasonable efforts to relet the Leased Premises and shall at all times comply with law regarding such reletting. Landlord shall not in any event be required to pay Tenant any sums received by Landlord on such reletting of the Leased Premises.
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
14.5 In the event this Lease is terminated due to Tenant's default as set forth above, and whether or not the Leased Premises be relet, Landlord shall be entitled to recover from the Tenant all Rent due and all expenses, including reasonable counsel fees, incurred by Landlord in recovering possession of the Leased Premises, and all reasonable costs and charges for the care of the Leased Premises while vacant, which damages shall be due at such time as they are incurred by Landlord; and all other damages set forth in this Paragraph 14 and in Paragraph 15. Without any previous notice or demand, separate actions may be maintained by Landlord against Tenant from time to time to recover any damages which have become due and payable to the Landlord without waiting until the end of the term.
14.6 In the event that Landlord fails to do, observe, keep and perform any of the terms, covenants, conditions, agreements or provisions of this Lease within 20 days after written notice from the Tenant, it shall be considered a default of Landlord hereunder, unless Landlord has been diligently pursuing a resolution of the problem.
15. LIABILITY OF TENANT FOR DEFICIENCY
In the event that the relation of the Landlord and Tenant terminates by reason of
(a) a default by the Tenant and the re-entry of the Landlord as permitted herein; or
(b) by the ejectment of the Tenant by summary proceedings or other judicial proceedings;
it is hereby agreed that the Tenant shall remain liable to pay in monthly payments the Rent and any other charges which shall accrue. The Tenant expressly agrees to pay a portion of Landlord's damages for such breach of this Lease the difference between the Rent herein and the rent received, if any, by the Landlord, during the remainder of the unexpired term, provided that the Landlord shall comply with applicable laws with regard to mitigation.
16. NOTICES
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
All notices required by this Lease shall be given either by certified mail, return receipt requested, or by reputable overnight courier, or personal delivery with receipt, at the address set forth on the first page of this Lease, and/or such other place as the parties may designate in writing.
17. NON-WAIVER BY LANDLORD
The failure of Landlord to insist upon the strict performance of any of the terms of this Lease, or to exercise any option contained herein, shall not be construed as a waiver of any such term. Acceptance by Landlord of performance of anything required by this Lease to be performed, with the knowledge of the breach of any term of this Lease, shall not be deemed a waiver of such breach, nor shall acceptance of Rent in a lesser amount than is due (regardless of any endorsement on any check, or any statement in any letter accompanying any payment of Rent) be construed either as an accord and satisfaction or in any manner other than as payment on account of the earliest Rent then unpaid by Tenant. No waiver by Landlord of any term of this Lease shall be deemed to have been made unless expressed in writing and signed by Landlord.
18. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
The Tenant may not make alterations, additions or improvements to the Leased Premises, or change the door locks or window coverings, or in any way alter access to the Leased Premises without the consent of the Landlord, which consent shall not be unreasonably withheld, conditioned or delayed, provided that Tenant's proposed alterations, additions or improvements do not decrease the value of the Leased Premises. Landlord agrees to review any alterations, additions, or improvements proposed by Tenant within 15 days of receipt of plans and specifications, and advise Tenant of its decision. Landlord shall also, in the event it gives consent, advise the Tenant whether Tenant shall be required to remove the alterations, additions or improvements at the termination of the Lease and restore the Leased Premises to its state prior to making such alterations, additions or improvements. Should Landlord fail to respond
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
within 15 days of receipt of plans and specifications, the plans and specifications shall be deemed approved. Any approval given is not intended to subject the Landlord's property to liability under any lien law. Tenant shall be responsible for obtaining at its own cost and expense all licenses, permits and approvals that may be required by any governmental entity having jurisdiction over the approved alterations, additions and/or improvements. Tenant shall furnish to Landlord as-built drawings of any alterations, additions or improvements which are made.
19. NON-LIABILITY OF LANDLORD
Tenant agrees to assume all risk of damage to its property, equipment and fixtures occurring in or about the Leased Premises, whatever the cause of such damage or casualty. Landlord shall not be liable for any damage or injury to property caused by or resulting from steam, electricity, gas, water, rain, ice or snow, or any leak or flow from or into any part of the Building, or from any damage or injury resulting or arising from any other cause or happening whatsoever.
20. RESERVATION OF EASEMENT
Landlord reserves the right, easement and privilege to enter on the Leased Premises in order to install, at its own cost and expense, any utility lines and services in connection therewith as may be required by the Landlord. It is understood and agreed that if such work as may be required by Landlord requires any interior installation, or displaces any exterior paving or landscaping, the Landlord shall at its own cost and expense, restore such items, to substantially the same condition as they were before such work. The Landlord covenants that the foregoing work shall not unreasonably interfere with the normal operation of Tenant's business.
21. STATEMENT OF ACCEPTANCE
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Upon the delivery of the Leased Premises to the Tenant the Tenant covenants and agrees that it will furnish to Landlord a statement which shall set forth the Date of Commencement and the Date of Expiration of the lease term, as well as the amounts being charged for Base Rent.
22. FORCE MAJEURE
Except for the obligation of the Tenant to pay Rent and other charges, the period of time during which the Landlord or Tenant is prevented from performing any act required to be performed under this Lease by reason of fire, catastrophe, strikes, lockouts, civil commotion, weather conditions, acts of God, government prohibitions or preemptions or embargoes, inability to obtain material or labor by reason of governmental regulations, the act or default of the other party, or other events beyond the reasonable control of Landlord or Tenant, as the case may be, shall be added to the time for performance of such act.
23. STATEMENTS BY LANDLORD AND TENANT
Landlord and Tenant agree at any time and from time to time upon not less than 10 days' prior notice from the other to execute, acknowledge and deliver to the party requesting same, a statement in writing, certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), that it is not in default (or if claimed to be in default, stating the amount and nature of the default) and specifying the dates to which the Rent and other charges have been paid in advance.
24. CONDEMNATION
24.1 If due to condemnation, (i) more than 15% of the Leased Premises is taken or rendered untenantable, or (ii) more than 25% of the ground is taken (including parking areas, but excluding front, side and rear set back areas), or (iii) a taking materially interferes with Tenant's business operations, in the Tenant's reasonable opinion, then the lease term created shall terminate from the date
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
when the authority exercising the power of eminent domain takes or interferes with the use of the Property. The Tenant shall be responsible for the payment of Rent until the time of surrender. In any event, no part of the Landlord's condemnation award shall be claimed by the Tenant. Without diminishing Landlord's award, the Tenant shall have the right to make a claim against the condemning authority for such independent claim which it may have.
24.2 In the event of any partial taking which would not be cause for termination of the Lease, or in the event of any taking in excess of the percentages provided above and Tenant retains the balance of the Leased Premises remaining after such taking, then the Rent shall abate in an amount to be mutually agreed upon between the Landlord and Tenant based on the relationship that the character of the property prior to the taking bears to the property which shall remain after the condemnation. The Landlord shall, to the extent permitted by applicable law and as the same may be practicable, promptly make such repairs and alterations in order to restore the Building and/or improvements to a usable condition to the extent of any condemnation award received by Landlord.
25. LANDLORD'S REMEDIES
25.1 The rights and remedies given to the Landlord in this Lease are distinct, separate and cumulative remedies, and no one of them, whether or not exercised by the Landlord, shall be deemed to be in exclusion of any of the others
25.2 In addition to any other legal remedies for violation or breach of this Lease by the Tenant or by anyone holding or claiming under the Tenant such violation or breach shall be restrainable by injunction at the suit of the Landlord.
25.3 No receipt of money by the Landlord from any receiver, trustee or custodian or debtors in possession shall reinstate, or extend the term of this Lease or affect any notice theretofore given to the Tenant, or to any such receiver, trustee, custodian or debtor in possession, or operate as a
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
waiver or estoppel of the right of the Landlord to recover possession of the Leased Premises for any of the causes therein enumerated by any lawful remedy; and the failure of the Landlord to enforce any covenant or condition by reason of its breach by the Tenant shall not be deemed to void or affect the right of the Landlord to enforce the same covenant or condition on the occasion of any subsequent default or breach
26. QUIET ENJOYMENT
The Landlord covenants that the Tenant, on paying the Rent and performing the covenants and conditions contained in this Lease, may peaceably and quietly have, hold and enjoy the Leased Premises, in the manner of a multi-tenanted building, for the Lease term.
27. SURRENDER OF PREMISES
On the last day, or earlier permitted termination of the Lease, Tenant shall quit and surrender the Initial Space in a condition substantially similar to the condition of the space as of the date of delivery, and the Subleased Space in a condition substantially similar to the condition of the Subleased Space on the Sublease Commencement Date, (reasonable wear and tear, and damage by fire or other casualty excepted) and shall deliver and surrender the Leased Premises to the Landlord peaceably, together with all Tenant Improvements. Prior to the expiration of the Lease term the Tenant shall remove all of its tangible property, fixtures and equipment from the Leased Premises. All property not removed by Tenant shall be deemed abandoned by Tenant, and Landlord reserves the right to charge the reasonable cost of such removal and disposal to the Tenant. If the Leased Premises are not surrendered at the end of the Lease term, the Tenant shall be liable for double rent under NJSA 2A:42-6, and Tenant shall indemnify Landlord against loss or liability resulting from delay by Tenant in surrendering the Leased Premises, including, without limitation any claims made by any succeeding tenant founded on the delay, and any loss of income suffered by Landlord. These covenants shall survive the termination of the Lease.
28. INDEMNITY
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Anything in this Lease to the contrary notwithstanding, and without limiting the Tenant's obligation to provide insurance hereunder, the Tenant covenants and agrees that it will indemnify, defend and save harmless the Landlord against and from all liabilities, obligations, damages, penalties, claims, costs, charges and expenses, including without limitation reasonable attorneys' fees, which may be imposed upon or incurred by Landlord by reason of any of the following occurring during the term of this Lease:
(a) Any matter, cause or thing arising out of Tenant's use, occupancy, control or management of the Leased Premises and any part thereof.
(b) Any negligence on the part of the Tenant or any of its agents, employees, licensees or invitees, arising in or about the Leased Premises.
(c) Any failure on the part of Tenant to perform or comply with any of its covenants, agreements, terms or conditions contained in this Lease.
Subject to the provisions of paragraph 19, the foregoing shall not require indemnity by Tenant in the event of damage or injury occasioned by the negligence or acts of commission or omission of the Landlord, its agents, servants or employees.
Landlord shall promptly notify Tenant of any such claim asserted against it and shall promptly send to Tenant copies of all papers or legal process served upon it in connection with any action or proceeding brought against Landlord.
29. BIND AND CONSTRUE CLAUSE
The terms, covenants and conditions of this Lease shall be binding upon, and inure to the benefit of, each of the parties hereto and their respective heirs, successors and assigns. If any one of the provisions of this Lease shall be held to be invalid by a court of competent jurisdiction, such adjudication shall not affect the validity or enforceability of the remaining portions of this Lease. The parties each
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
acknowledge to the other that this Lease has been drafted by both parties, after consultation with their attorneys, and in the event of any dispute, the provisions are not to be interpreted against either party as the drafter of the Lease.
30. INCLUSIONS
The neuter gender when used herein, shall include all persons and corporations, and words used in the singular shall include words in the plural where the text of the instrument so requires.
31. DEFINITION OF TERM "LANDLORD"
When the term "Landlord" is used in this Lease it shall be construed to mean and include only the entity which is the owner of title to the land and the building. Upon the transfer by the Landlord of the title, the Landlord shall advise the Tenant in writing by certified mail, return receipt requested, of the name of the Landlord's transferee. In such event, the Landlord shall be automatically freed and relieved from and after the date of such transfer of title of all personal liability with respect to the performance of any of the covenants and obligations on the part of the Landlord herein contained to be performed, provided any such transfer and conveyance by the Landlord is expressly subject to the assumption by the transferee of the obligations of the Landlord hereunder.
32. COVENANTS OF FURTHER ASSURANCES
If, in connection with obtaining financing for the improvements on the Leased Premises, the mortgage lender shall request reasonable modifications in this Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or refuse its consent thereto, provided that such modifications do not in Tenant's reasonable judgment increase the obligations of Tenant hereunder, diminish Tenant's rights hereunder or materially adversely affect the leasehold interest hereby created or Tenant's use and enjoyment of the Leased Premises.
33. COVENANT AGAINST LIENS
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Tenant agrees that it shall not encumber, or permit to be encumbered, the Leased Premises or the fee thereof by any lien, charge or encumbrance, and Tenant shall have no authority to mortgage or hypothecate this Lease in any way whatsoever. Any violation of this Paragraph shall be considered a breach of this Lease.
34. SUBORDINATION
This Lease shall be subject and subordinate at all times to the lien of any mortgages or ground leases or other encumbrances now or hereafter placed on the land, Building and Leased Premises without the necessity of any further instrument or act on the part of Tenant to effectuate such subordination. However, Tenant agrees to execute such further documents evidencing the subordination of the Lease to the lien of any mortgage or ground lease as shall be desired by Landlord within 15 days, provided such documents are in a form reasonably acceptable to Tenant.
35. EXCULPATION OF LANDLORD
Neither Landlord nor its principals shall have any personal obligation for the payment of any indebtedness or for the performance of any obligation under this Lease. The performance of Landlord's obligations expressed herein may be enforced only against the Building and land of which the Leased Premises are a part, and the rents, issues and profits thereof. The Tenant agrees that no deficiency judgment or other judgment for money damages shall be entered by it against the Landlord or its principals personally in any action.
36. NET RENT
It is the intent of the Landlord and Tenant that this Lease shall yield, net to Landlord, the Base Rent specified and all Additional Rent and charges in each month during the term of the Lease, and that all costs, expenses and obligations of every kind relating to the Leased Premises shall be paid by the Tenant, unless expressly assumed by the Landlord.
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
37. SECURITY
There shall be no security deposit required.
38. BROKERAGE
The parties mutually represent to each other that Triad Properties, LLC is the broker who negotiated and consummated the within transaction, and that neither party dealt with any other broker in connection with the Lease. In the event either party violates this representation, it shall indemnify, defend and hold the other party harmless from all claims and damages. It is agreed that the Landlord shall be responsible, at its sole cost and expense, to pay the brokerage commission in connection with this Lease pursuant to a separate document.
39. LATE CHARGES
In addition to any other remedy, a late charge of 1-1/2% per month, retroactive to the date Rent was due, shall be due and payable, without notice from Landlord, on any portion of Rent or other charges not paid within 5 days of the due date.
40. PRESS RELEASES
Landlord shall have the right to announce the execution of this Lease, the parties hereto, and the real estate brokers involved in such press releases as Landlord shall deem advisable. In addition, Tenant shall permit Landlord to use its name and photographs of the Leased Premises (all photographs being subject to Tenant's prior consent) in Landlord's marketing brochures and materials, and Tenant agrees to cooperate with Landlord in such regard, in Tenant's sole discretion, but at no cost or expense to Tenant.
41. WAIVER OF JURY TRIAL
Landlord and Tenant both irrevocably waive a trial by jury in any action or proceeding between them or their successors or assigns arising out
Initial: Landlord
Tenant (SNS)
Lease Version Date: July 31, 2006
Cedar Brook II Corporate Center, L.P., by its General Partner, Corporate 130, Inc. Date: Aug 1 06 /s/ A. Joseph Stern --------- ------------------------------ A. Joseph Stern Landlord Amicus Therapeutics, Inc. Date: 7-31-06 By: /s/ John Crowley, CEO -------- --------------------------- John Crowley Tenant Initial: Landlord Tenant (SNS) |
Lease Version Date: July 31, 2006