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 |
Proposed Maximum
|
Amount of
|
|||||||||||
Title of Each Class of
|
Amount to be
|
Offering Price Per
|
Registration
|
|||||||||
Securities to be Registered | Registered(1) | Share(2) | Proposed Maximum Aggregate Offering Price(2) | Fee(3)(4) | ||||||||
Common Stock, $0.01 par value per
share
|
5,750,000 | $16.00 | $92,000,000 | $2,824.40 | ||||||||
(1) | Includes 750,000 shares of common stock that may be purchased by the underwriters to cover over-allotments, if any. |
(2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended. |
(3) | Calculated pursuant to Rule 457(a) based on an estimate of the proposed maximum aggregate offering price. |
(4) | $2,647.88 of the registration fee has been paid previously in connection with this Registration Statement based on a previous estimate of the aggregate offering price. |
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 |
i
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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
5,000,000 shares
22,234,426 shares
Over-allotment option
750,000 shares
Use of proceeds
We estimate that the net proceeds from this offering will be
approximately $67.9 million, or approximately
$78.3 million if the underwriters exercise their
over-allotment option in full, assuming an initial public
offering price of $15.00 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
2,549,950 shares of common stock issuable upon the exercise
of stock options outstanding as of April 25, 2007, with a
weighted average exercise price of $7.56 per share;
5,333 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of
$5.63 per share;
shares of common stock issuable in connection with the exercise
of outstanding warrants to purchase shares of series B
redeemable convertible preferred stock. Upon the closing of this
offering, these warrants will be automatically exercised and the
shares of series B redeemable convertible preferred stock
automatically converted into between 34,309 and
59,674 shares of common stock, depending on whether such
warrants are exercised for cash or on a net issue basis. In the
case of exercises on a net issue basis, we have assumed a price
to the public of $15.00 per share, which is the mid-point of the
price range as set forth on the cover page of this prospectus;
an aggregate of 966,667 shares of common stock reserved for
future issuance under our 2007 equity incentive plan as of the
closing of this offering;
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 director option plan as of the
closing of this offering; and
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 employee stock purchase plan as
of the closing of this offering.
no exercise of the outstanding options or warrants to purchase
capital stock described above;
no exercise by the underwriters of their option to purchase
shares of common stock to cover over-allotments; and
a
1-for-7.5 reverse
split of our common stock and preferred stock which we intend to
effect prior to the closing of this offering.
5
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7
Period from
February 4,
2002
Three Months Ended
(Inception) to
Year Ended December 31,
March 31,
March 31,
2004
2005
2006
2006
2007
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
)
6
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Period from
February 4,
2002
Three Months Ended
(Inception) to
Year Ended December 31,
March 31,
March 31,
2004
2005
2006
2006
2007
2007
(unaudited)
(unaudited)
(unaudited)
(in thousands, except shares and per share data)
$
(8,932
)
$
(20,111
)
$
(65,928
)
$
(8,328
)
$
(9,736
)
$
(113,278
)
$
(29.05
)
$
(49.02
)
$
(89.58
)
$
(15.43
)
$
(10.21
)
307,539
410,220
735,967
539,789
953,959
$
(46,345
)
$
(9,695
)
$
(2.76
)
$
(0.57
)
16,807,933
17,025,885
As of March 31, 2007
Pro Forma as
Actual
Pro Forma
Adjusted
(unaudited)
(in thousands)
$
67,706
$
67,706
$
135,570
59,526
59,526
127,390
73,048
73,048
140,912
11,146
10,474
10,474
148,184
(93,362
)
(92,690
)
(92,690
)
(86,282
)
62,574
130,439
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.
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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.
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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.
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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
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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
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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
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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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| approximately $20.0 million for clinical development of Amigal for the treatment of Fabry disease; |
| approximately $20.0 million for clinical development of Plicera for the treatment of Gaucher disease; |
| approximately $20.0 million for clinical development of AT2220 for the treatment of Pompe disease; |
| approximately $5.0 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 elimination of our
warrant liability of $672,418 and the automatic conversion of
all shares of our redeemable convertible preferred stock into an
aggregate of 16,071,924 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 5,000,000 shares of common stock in
this offering at an assumed initial public offering price of
$15.00 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
$
3,250
2,477
30,895
54,878
59,934
82
1,288
1,338
6,981
153,959
221,774
17
17
17
(93,362
)
(92,690
)
(92,690
)
$
(86,282
)
$
62,574
130,439
$
65,152
$
65,824
133,689
(1)
A $1.00 increase (decrease) in the
assumed initial public offering price of $15.00 per share,
which is the mid-point of the price range listed on the cover
page of this prospectus, 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 $4.7 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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1,714,087 shares of common stock issuable upon exercise of
options outstanding as of March 31, 2007 at a weighted
average exercise price of $4.58 per share;
5,333 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of
$5.63 per share;
shares of common stock issuable in connection with the exercise
of outstanding warrants to purchase shares of series B
redeemable convertible preferred stock. Upon the closing of this
offering, these warrants will be automatically exercised and the
shares of series B redeemable convertible preferred stock
automatically converted into between 34,309 and
59,674 shares of common stock, depending on whether such
warrants are exercised for cash or on a net issue basis. In the
case of exercises on a net issue basis, we have assumed a price
to the public of $15.00 per share, which is the mid-point of the
price range as set forth on the cover page of this prospectus;
an aggregate of 966,667 shares of common stock reserved for
future issuance under our 2007 equity incentive plan as of the
closing of this offering;
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 director option plan as of the
closing of this offering; and
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 employee stock purchase plan as
of the closing of this offering.
35
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$
15.00
(75.24
)
78.85
3.61
2.24
5.85
$
9.15
36
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Total
Average
Shares Purchased
Consideration
Price Per
Number
Percent
Amount
Percent
Share
17,234,426
77.5
%
150,791,267
66.8
%
$
8.75
5,000,000
22.5
%
75,000,000
33.2
15.00
22,234,426
100.0
%
225,791,267
100.0
%
10.16
(1)
A $1.00 increase (decrease) in the
assumed initial public offering price of $15.00 per share, which
is the mid-point of the price range on the cover page of this
prospectus, would increase (decrease) the total consideration
paid by new investors by $4.7 million and increase
(decrease) the percentage of total consideration paid by new
investors by approximately 1.4%, assuming that the number
of shares offered by us, as set forth on the cover page of this
prospectus, remains the same.
1,714,087 shares of common stock issuable upon exercise of
stock options outstanding as of March 31, 2007 at a
weighted average exercise price of $4.58 per share;
5,333 shares of common stock issuable upon exercise of a
warrant to purchase common stock at an exercise price of
$5.63 per share;
shares of common stock issuable in connection with the exercise
of outstanding warrants to purchase shares of series B
redeemable convertible preferred stock. Upon the closing of this
offering, these warrants will be automatically exercised and the
shares of series B redeemable convertible preferred stock
automatically converted into between 34,309 and
59,674 shares of common stock, depending on whether such
warrants are exercised for cash or on a net issue basis. In the
case of exercises on a net issue basis, we have assumed a price
to the public of $15.00 per share, which is the mid-point of the
price range as set forth on the cover page of this prospectus;
an aggregate of 966,667 shares of common stock reserved for
future issuance under our 2007 equity incentive plan as of the
closing of this offering;
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 director option plan as of the
closing of this offering; and
an aggregate of 200,000 shares of common stock reserved for
future issuance under our 2007 employee stock purchase plan as
of the closing of this offering.
the percentage of shares of common stock held by existing
stockholders will decrease to 75.0% 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 5,750,000, or approximately 25% of the
total pro forma as adjusted number of shares of our common stock
outstanding after this offering.
37
Table of Contents
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
)
(22
)
(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
)
$
(22.05
)
$
(29.05
)
$
(49.02
)
$
(89.58
)
$
(15.43
)
$
(10.21
)
307,539
307,539
410,220
735,967
539,789
953,959
$
(46,345
)
$
(9,695
)
$
(2.76
)
$
(0.57
)
16,807,933
17,025,885
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 owed 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
404,941
$
0.68
$
2.33
$
1.65
235,838
0.68
5.78
5.10
42,071
1.65
7.13
5.48
313,477
5.33
8.55
3.23
13,934
5.33
10.80
5.48
1,010,261
Average
Average
Fair Value
Intrinsic
Number of
Average
Estimate per
Value
Options
Exercise
Common
per
Granted
Price
Share
Share
786,019
$
5.33
$
13.73
(1)
$
8.40
119,940
8.18
8.18
54,006
8.18
8.18
45,203
9.15
9.15
1,005,168
(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
17,870
9.90
$
9.90
$
856,292
13.43
13.43
874,162
45
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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 404,941 options granted to
employees during the period from January 2005 through May 2005
was $2.33 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 235,838 options granted to employees
during the period from June 2005 through July 2005 was
determined to be $5.78 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 42,071 options granted to employees
during the period from August 2005 through September 2005 was
determined to be $7.13 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 313,477 options granted to employees
during the period from October 2005 through November 2005 was
determined to be $8.55 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 13,934 options granted to employees in
December 2005 and 12,335 options granted to employees in the
period from January 1, 2006 to February 22, 2006 was
determined to be $10.80 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 773,684 options granted to employees and
directors in the period from February 28, 2006 to
March 27, 2006 was determined to be $13.80 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 $16.13
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 173,946 options
granted to employees during the period from June to September of
2006 was determined to be $8.18 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 45,203 options granted
to employees during the fourth quarter of 2006 was determined to
be $9.15 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 17,870 options granted
to employees during the first quarter of 2007 was determined to
be $9.90 per share. This increase was primarily based on an
increase of the
47
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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 856,292 options
granted to employees during April of 2007 was determined to be
$13.43 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
)
307,539
410,220
735,967
539,789
953,959
48
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49
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Approximate
Year
No. Shares
Amount
(1)
2002
444,443
$
2,500,000
2004, 2005, 2006
4,877,056
31,091,307
2005, 2006
5,820,020
54,999,332
2006, 2007
4,930,405
59,999,999
16,071,924
$
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
Table of Contents
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.
61
Table of Contents
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. A fourth patient has completed
screening and is expected to begin treatment in May 2007.
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 203.
Five 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 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 204.
Seven patients have
been treated in this study. Two additional patients have
completed screening and are expected to begin treatment in May
2007. 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.
63
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64
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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.
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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.
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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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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. Lastly, we
jointly own one pending U.S. application covering methods of
diagnosing Fabry disease and determining whether Fabry patients
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. We own one pending
U.S. application directed to dosing regimens for Plicera,
which if granted, will expire in 2028. Lastly, we own a pending
U.S. application directed to specific treatment and
monitoring regimens with Plicera. If granted, this also 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 232,266 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 133,333 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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114
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
31
Vice President, Business Planning
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 Drs. Barkas and Bloch,
and Mr. Neff, and their term will expire at the annual
meeting of stockholders to be held in 2008;
the class II directors will be Drs. Topper and
Weinhoff, and Mr. Hayden, and their term will expire at the
annual meeting of stockholders to be held in 2009; and
the class III directors will be Messrs. Crowley, Raab,
and Sblendorio, 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;
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meeting independently with our independent registered public
accounting firm and management; and
preparing the audit committee report required by Securities and
Exchange Commission rules.
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.
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
13,334 common stock options granted to Mr. Hayden for
his service as our interim president and chief executive
officer, as well as the 66,667 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
280,000
(2)
$
5.33
$
2,597,512
Executive Officer
2/28/2006
66,667
(3)
5.33
618,455
9/13/2006
13,334
(4)
8.18
72,661
Executive Officer
10/2/2006
33,334
(2)
9.15
180,134
10/2/2006
40,000
(5)
9.15
366,000
2/28/06
2,000
(2)
5.33
18,541
3/27/06
6,667
5.33
61,859
5/15/06
1,334
8.18
6,428
2/28/2006
33,334
(2)
5.33
309,228
2/28/2006
100,000
(2)
5.33
927,683
2/28/2006
33,334
5.33
309,228
2/28/2006
2,667
(2)
5.33
24,738
2/28/2006
20,000
(2)
5.33
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
66,667 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
13,334 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 40,000 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
($)
Date
(#)
($)
63,672
156,165
(1)
$
0.638
1/6/2015
7,328
9,162
(1)
0.638
8/17/2014
29,166
70,834
(1)
5.33
10/20/2015
280,000
(1)
5.33
2/28/2016
66,667
(1)
5.33
2/28/2016
13,334
(2)
8.18
9/13/2016
33,334
(1)
8.18
10/2/2016
40,000
(5)
396,000
2,000
(1)
5.33
2/28/2016
6,667
(1)
5.33
3/27/2016
1,334
(1)
8.18
5/15/2016
16,275
48,272
(1)
0.638
12/15/2014
10,695
25,972
(1)
5.33
10/20/2015
33,333
(1)
5.33
2/28/2016
100,000
(1)
5.33
2/28/2016
33,334
(1)
5.33
2/28/2016
1,334
(1)
0.075
8/12/2012
2,667
334
(1)
0.563
1/20/2014
8,076
19,181
(1)
0.638
12/15/2014
8,750
21,250
(1)
5.33
10/20/2015
2,667
5.33
2/28/2016
58,332
(1)
0.638
6/19/2015
10,834
(1)
5.33
10/20/2015
9,167
(1)
5.33
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
(#)
($)
(#)
($)
80,000
$
1,053,000
Chief Executive Officer
9,722
73,238
32,000
241,200
48,866
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.
104
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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
280,000
203,333
236,250
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;
107
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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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109
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110
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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.
111
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112
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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**
4,483,582
26.2
%
20.3
%
Baltimore, MD 21202
2,600,014
15.2
%
11.8
%
Seattle, WA 98101
2,240,752
13.1
%
10.1
%
Palo Alto, CA 94301
2,108,554
12.3
%
9.5
%
Stamford, CT 06901
2,050,790
12.0
%
9.3
%
Westport, CT 06880
1,419,762
8.3
%
6.4
%
2929 Arch Street
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Percentage of Shares
Beneficially Owned
Number of Shares
Before
After
Beneficially Owned
Offering
Offering**
331,727
1.9
%
1.5
%
80,778
*
*
86,733
*
*
66,390
*
*
-0-
*
*
25,317
*
*
46,528
*
*
22,223
*
*
-0-
*
*
-0-
*
*
13,333
*
*
80,997
*
*
9,722
*
*
3,113
*
*
35,556
*
*
2,240,752
13.1
%
10.1
%
4,483,582
26.2
%
20.3
%
2,600,014
15.2
%
11.8
%
4,445
*
*
2,050,790
12.0
%
9.3
%
2,108,554
12.3
%
9.5
%
1,419,762
8.3
%
6.4
%
15,710,316
88.7
%
69.2
%
*
Represents beneficial ownership of
less than one percent of our outstanding common stock.
**
Assumes no purchase of shares of
common stock in this offering by any of the persons listed
herein.
(1)
Consists of 3,659,157 shares
held of record by New Enterprise Associates 11, Limited
Partnership (including 8,669 shares to be acquired
immediately prior to the closing of this offering as a result of
the assumed net exercise of outstanding warrants at an assumed
initial public offering price of $15.00 per share, which is the
mid-point of the price range listed on the cover page of this
prospectus), 2,689 shares held of record by NEA Ventures
2004, Limited Partnership (including 23 shares to be
acquired immediately prior to the closing of this offering as a
result of the assumed net exercise of outstanding warrants at an
assumed initial public offering price of $15.00 per share), and
821,736 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 2,586,886 shares
held of record by Frazier Healthcare IV, L.P. (including
15,042 shares to be acquired prior to the closing of this
offering as a result of the exercise for cash of outstanding
warrants) and 13,128 shares held of record by Frazier
Affiliates IV,
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L.P. (including 76 shares to
be acquired prior to the closing of this offering as a result of
the exercise for cash of outstanding warrants). 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.
(3)
Consists of 2,207,144 shares
held of record by Prospect Venture Partners II, L.P. (including
8,562 shares to be acquired immediately prior to the
closing of this offering as a result of the assumed net exercise
of outstanding warrants at an assumed initial public offering
price of $15.00 per share, which is the mid-point of the price
range listed on the cover page of this prospectus), and
33,608 shares held of record by Prospect Associates II,
L.P. (including 130 shares to be acquired immediately prior
to the closing of this offering as a result of the assumed net
exercise of outstanding warrants at an assumed initial public
offering price of $15.00 per share). 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 1,975,455 shares
held of record by CHL Medical Partners II, L.P. and
133,099 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 1,976,967 shares
held of record by Canaan Equity III, L.P. (including
7,859 shares to be acquired immediately prior to the
closing of this offering as a result of the assumed net exercise
of outstanding warrants at an assumed initial public offering
price of $15.00 per share, which is the mid-point of the price
range listed on the cover page of this prospectus), and
73,823 shares held of record by Canaan Equity III
Entrepreneurs, LLC (including 293 shares to be acquired
immediately prior to the closing of this offering as a result of
the assumed net exercise of outstanding warrants at an assumed
initial public offering price of $15.00 per share). 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 1,064,822 shares
held of record by Quaker BioVentures, L.P. and
354,940 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 185,061 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 146,666 shares
held of record. Includes 13,333 shares held of record by
MPAJ, LLC, for which Mr. Crowley has sole voting and
dispositive power, 60,000 shares held of record by Aileen
A. Crowley 2007 Grantor Retained Annuity Trust, and
73,333 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 25,246 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 55,532 shares held
of record.
(9)
Consists of 54,733 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 32,000 shares held
of record.
(10)
Consists of 39,572 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 26,818 shares held
of record. Includes 6,666 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 12,522 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007, and 12,795 shares held
of record.
(12)
Consists of 46,528 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(13)
Consists of 22,223 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(14)
Consists of 13,333 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(15)
Consists of 3,113 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(16)
Consists of 35,556 shares
issuable upon the exercise of stock options exercisable within
60 days of April 25, 2007.
(17)
Consists of 4,445 shares of
restricted stock which vest within 60 days of
April 25, 2007.
(18)
Consists of shares beneficially
owned by entities affiliated with Canaan Partners, as described
in footnote (5) above. 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.
(19)
Consists of shares beneficially
owned by entities affiliated with CHL Medical Partners, as
described in footnote (4) above. 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.
(20)
Consists of 437,888 total
shares issuable upon the exercise of stock options exercisable
within 60 days of April 25, 2007, warrants to purchase
40,654 shares of Series B redeemable convertible
preferred stock and 15,710,316 total shares held of record.
115
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116
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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
993,464
1,016,220
222,376
993,462
1,016,220
2,465,208
993,462
1,016,220
575,214
931,762
907,498
203,378
796,247
529,098
205,434
1,058,200
361,562
4,708,397
5,543,456
4,033,172
(1)
Includes 15,032 shares of
series B redeemable convertible preferred stock (including
the assumed net exercise of outstanding warrants to purchase
130 shares of series B redeemable convertible
preferred stock at an assumed initial public offering price of
$15.00 per share, which is the mid-point of the price range
listed on the cover page of this prospectus), 15,242 shares
of series C redeemable convertible preferred stock and
3,334 shares of series D redeemable convertible
preferred stock, in each case issued to Prospect Associates II,
L.P., and 987,124 shares of series B redeemable
convertible preferred stock (including the assumed net exercise
of outstanding warrants to purchase 8,562 shares of
series B redeemable convertible preferred stock at an
assumed initial public offering price of $15.00 per share,
which is the mid-point of the price range listed on the cover
page of this prospectus), 1,000,978 shares of series C
redeemable convertible preferred stock and 219,042 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 2,689 shares of
series B redeemable convertible preferred stock issued to
NEA Ventures 2004, Limited Partnership (including the assumed
net exercise of outstanding warrants to purchase 23 shares
of series B redeemable convertible preferred stock at an assumed
initial public offering price of $15.00 per share, which is
the mid-point of the price range listed on the cover page of
this prospectus), 999,465 shares of series B
redeemable convertible preferred stock (including the assumed
net exercise of outstanding warrants to purchase
8,669 shares of series B redeemable convertible
preferred stock at an assumed initial public offering price of
$15.00 per share, which is the mid-point of the price range
listed on the cover page of this prospectus),
1,016,220 shares of series C redeemable convertible
preferred stock and 1,643,472 shares of series D
redeemable convertible preferred stock issued to New Enterprise
Associates 11, L.P., and 821,736 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 5,092 shares of
series B redeemable convertible preferred stock (including
the assumed exercise for cash of outstanding warrants to
purchase 76 shares of series B redeemable convertible
preferred stock), 5,132 shares of series C redeemable
convertible preferred stock and 2,904 shares of
series D redeemable convertible preferred stock issued to
Frazier Affiliates IV, L.P., and 1,003,488 shares of
series B redeemable convertible preferred stock (including
the assumed exercise for cash of outstanding warrants to
purchase 15,042 shares of series B redeemable
convertible preferred stock), 1,011,088 shares of
series C redeemable convertible preferred stock and
572,310 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 906,079 shares of
series B redeemable convertible preferred stock (including
the assumed net exercise of outstanding warrants to purchase
7,859 shares of series B redeemable convertible
preferred stock at an assumed initial public offering price of
$15.00 per share, which is the mid-point of the price range
listed on the cover page of this prospectus),
874,830 shares of series C redeemable convertible
preferred stock and 196,058 shares of series D
redeemable convertible preferred stock issued to Canaan
Equity III, L.P., and 33,835 shares of series B
redeemable convertible preferred stock (including the assumed
net exercise of
117
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outstanding warrants to purchase
293 shares of series B redeemable convertible
preferred stock at an assumed initial public offering price of
$15.00 per share, which is the mid-point of the price range
listed on the cover page of this prospectus), 32,668 shares
of series C redeemable convertible preferred stock and
7,320 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.
(5)
Includes 51,015 shares of
series B redeemable convertible preferred stock (including
753 shares issued pursuant to the exercise of warrants to
purchase series B redeemable convertible preferred stock),
33,398 shares of series C redeemable convertible
preferred stock and 12,968 shares of series D
redeemable convertible preferred stock issued to
CHL Medical Partners II Side Fund, L.P., and
757,167 shares of series B redeemable convertible
preferred stock (including 11,182 shares issued pursuant to
the exercise of warrants to purchase series B redeemable
convertible preferred stock), 495,700 shares of
series C redeemable convertible preferred stock and
192,466 shares of series D redeemable convertible
preferred stock issued to CHL Medical Partners II, L.P.
(6)
Includes 793,650 shares of
series C redeemable convertible preferred stock and
271,172 shares of series D redeemable convertible
preferred stock issued to Quaker BioVentures, L.P. and
264,550 shares of series C redeemable convertible
preferred stock and 90,390 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
784,313
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119
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1,162,502 shares of common stock outstanding held by 40
stockholders of record;
444,443 shares of series A redeemable convertible
preferred stock that are convertible into 444,443 shares of
common stock;
4,877,056 shares of series B redeemable convertible
preferred stock that are convertible into 4,877,056 shares
of common stock;
5,820,020 shares of series C redeemable convertible
preferred stock that are convertible into 5,820,020 shares
of common stock; and
4,930,405 shares of series D redeemable convertible
preferred stock that are convertible into 4,930,405 shares
of common stock.
options to purchase 2,549,950 shares of common stock at a
weighted average exercise price of $7.56 per share;
warrants to purchase an aggregate of 59,674 shares of
series B redeemable convertible preferred stock at an
exercise price of $6.38 per share, which, upon the closing of
this offering, will be automatically exercised and converted,
resulting in the issuance of between 34,309 and
59,674 shares of common stock, depending on whether the
issuance of such shares is settled for cash or for shares of
capital stock, and assuming a price to the public of
$15.00 per share, which is the mid-point of the price range
as set forth on the cover page of this prospectus; and
a warrant to purchase 5,333 shares of common stock at an
exercise price of $5.63 per share.
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121
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122
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123
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1% of the number of shares of our common stock then outstanding,
which will equal approximately 222,344 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.
124
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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.
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Number of
Shares
Incorporated
No
Full
Exercise
Exercise
$
$
$
$
126
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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;
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128
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129
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(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
)
$
(29.05
)
$
(49.02
)
$
(89.58
)
307,539
410,220
735,967
$
(46,344,910
)
$
(2.76
)
16,807,933
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
$
$
$
$
$
$
74,938
5,620
78,243
83,863
232,266
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
)
307,204
23,040
685,049
(181,518
)
(1,775,353
)
(1,248,782
)
333
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
)
307,537
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
)
307,537
23,065
1,182,548
(9,083
)
(133,174
)
(17,350,151
)
(16,286,795
)
97,156
7,287
16,641
23,928
133,332
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
)
538,025
40,352
4,015,140
(16,139
)
(2,546,846
)
(37,322,440
)
(35,829,933
)
265,801
19,936
138,345
158,281
133,333
10,000
1,210,000
1,220,000
(2,546,846
)
2,546,846
53,333
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
)
990,492
$
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
)
307,539
410,220
735,967
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)
Series A
Series B
Series C
Series D
Shares
Amount
Shares
Amount
Shares
Amount
Shares
Amount
$
$
$
$
444,443
2,500,000
(95,185
)
10,720
444,443
2,415,535
16,893
444,443
2,432,428
2,823,523
18,000,000
(122,402
)
(421,802
)
16,893
108,840
444,443
2,449,321
2,823,523
17,564,636
2,039,211
13,000,000
(5,793
)
2,910,010
27,499,665
(177,757
)
16,893
109,999
11,850
444,443
2,466,214
4,862,734
30,668,842
2,910,010
27,333,758
14,322
91,307
2,910,010
27,499,667
2,953,878
35,946,897
(75,882
)
9,475
108,352
35,443
5,532
444,443
$
2,475,689
4,877,056
$
30,868,501
5,820,020
$
54,868,868
2,953,878
$
35,876,547
F-17
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)
149.7
$
0.15
277.8
$
0.60
(0.9
)
$
0.60
426.6
$
0.45
1,010.2
$
2.17
(97.2
)
$
0.22
(102.5
)
$
0.45
1,237.1
$
2.10
1,005.1
$
6.00
(265.8
)
$
0.60
(108.0
)
$
2.20
1,868.4
$
4.27
8.4 years
$
78.7
1,672.3
$
4.12
8.3 years
$
72.0
416.5
$
2.17
7.4 years
$
24.0
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)
$
53.3
$
8.92
(2.2
)
$
8.17
$
51.1
$
8.92
$
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
)
(11.10
)
(15.98
)
(12.00
)
(10.88
)
(8,287,253
)
(8,623,668
)
(11,642,604
)
(17,791,385
)
(8,327,864
)
(28,088,646
)
(11,683,215
)
(17,828,354
)
(15.43
)
(39.04
)
(15.01
)
(19.77
)
(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
$
19,852,531
42,572,468
47,853,240
47,853,240
321,275
387,577
387,577
55,020,324
68,093,348
68,093,348
4,357,912
4,264,661
4,264,661
267,338
689,823
689,823
$
59,645,574
73,047,832
73,047,832
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
1,287,821
6,066,876
6,981,092
153,959,393
14,752
16,577
16,577
(83,667,350
)
(93,362,289
)
(92,689,871
)
(77,515,434
)
(86,282,193
)
62,573,920
$
59,645,574
$
73,047,832
$
73,047,832
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
)
$
(15.43
)
$
(10.21
)
539,789
953,959
$
(9,694,939
)
$
(0.57
)
17,025,885
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
990,492
$
70,288
$
6,066,876
$
14,752
$
(83,667,350
)
$
(77,515,434
)
161,839
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
)
1,152,331
$
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)
1,868.5
$
4.27
17.9
$
9.90
(161.8
)
$
1.35
(10.5
)
$
8.17
1,714.1
$
4.57
8.1 years
$
15.2
1,568.2
$
4.50
8.1 years
$
13.9
529.4
$
4.42
7.6 years
$
4.8
F-33
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
)
$
(15.43
)
$
(10.21
)
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
Series A
Series B
Series C
Series D
Shares
Amount
Shares
Amount
Shares
Amount
Shares
Amount
444,443
$
2,475,689
4,877,056
$
30,868,501
5,820,020
$
54,868,868
2,953,878
$
35,876,547
1,976,527
24,053,102
1,364
26,086
8,795
4,743
444,443
$
2,477,053
4,877,056
$
30,894,587
5,820,020
$
54,877,663
4,930,405
$
59,934,392
Table of Contents
Table of Contents
$
2,824
$
9,125
$
100,000
650,000
650,000
10,000
3,500
360,000
100,000
$
1,885,449
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
3
.5
Certificate of Amendment to
Amended and Restated Certificate of Incorporation of the
Registrant to be effective immediately prior to completion of
the 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 and
forms of option agreements
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
II-4
Table of Contents
Exhibit
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.
10
.23
2007 Director Option Plan and form
of option agreement
10
.24
2007 Employee Stock Purchase Plan
10
.25
Severance and Change in Control
Agreements, dated as of May 10, 2007, by and between the
Registrant and Bradley L. Campbell
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.
+
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:
President, Chief Executive Officer
and Director (principal executive officer)
May 17, 2007
Chief Financial Officer (principal
financial and accounting officer)
May 17, 2007
Chairman of the Board
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
Director
May 17, 2007
*By:
II-6
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
3
.5
Certificate of Amendment to
Amended and Restated Certificate of Incorporation of the
Registrant to be effective immediately prior to the completion
of the 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 and
forms of option agreements
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.
10
.23
2007 Director Option Plan and form
of option agreement
10
.24
2007 Employee Stock Purchase Plan
10
.25
Severance and Change in Control
Agreements, dated as of May 10, 2007, by and between the
Registrant and Bradley L. Campbell
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.
+
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.
Exhibit 1.1
__________ SHARES
AMICUS THERAPEUTICS, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
____________, 2007
_______________, 2007
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial center
New York, New York, 10080
As representatives of the several Underwriters to be named in the within mentioned Agreement
Ladies and Gentlemen:
Amicus Therapeutics, Inc., a Delaware corporation (the "COMPANY"), confirms its agreements with Morgan Stanley & Co. Incorporated ("MORGAN STANLEY") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MERRILL LYNCH") and each of the Underwriters named in Schedule I hereto (the "UNDERWRITERS") for whom Morgan Stanley and Merrill Lynch are acting as representatives (in such capacity "REPRESENTATIVES") with respect to the Company's proposal to issue and sell to the Underwriters _________ shares of its Common Stock, par value $0.01 per share (the "FIRM SHARES"). The Company also proposes to issue and sell to the several Underwriters not more than an additional ______________ shares of its Common Stock, par value $0.01 per share (the "ADDITIONAL SHARES") if and to the extent that you, as Representatives, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the "SHARES." The shares of Common Stock, par value $0.01 per share of the Company to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the "COMMON STOCK."
The Company has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first used to confirm sales of Shares (or in the form first made available to the Underwriters by the Company
to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the "PROSPECTUS." If the Company has filed an abbreviated registration statement to register additional shares of Common Stock pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Underwriting Agreement (this "AGREEMENT"), "FREE WRITING PROSPECTUS" has the meaning set forth in Rule 405 under the Securities Act, "TIME OF SALE PROSPECTUS" means the preliminary prospectus together with the free writing prospectuses, if any, each identified in Schedule II hereto, and "BROADLY AVAILABLE ROAD SHOW" means a "bona fide electronic road show" as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms "Registration Statement," "preliminary prospectus," "free writing prospectus," "Time of Sale Prospectus" and "Prospectus" shall include the documents, if any, incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(ii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each
sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers and at the Closing Date (as defined in
Section 4), the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
(iv) the broadly available road show, if any, when considered together with the
Time of Sale Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading and
(v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under
which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein. Any statistical and market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate, and the Company has obtained the written consent to the use of such data from such sources.
(c) The Company is not an "ineligible issuer" in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company.
(e) The Company has no subsidiaries.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time of Sale Prospectus and the Prospectus. No person is entitled to preemptive or similar rights to acquire any securities of the Company, except rights that are not triggered by the issuance of the Shares and that terminate upon the Closing Date (as defined herein). There are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue, any shares of its Common Stock or any other
class of shares of capital stock of the Company, except as set forth in the Prospectus. Except as described in the Time of Sale Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(h) The shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights.
(j) The Company is not in violation of its certificate of incorporation or by-laws or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any of the agreements filed as an exhibit to the Registration Statement or any other material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company is a party or by which it may be bound, or to which any of the property or assets of the Company is subject (collectively, "AGREEMENTS AND INSTRUMENTS"); and the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statement (including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in the Prospectus under the caption "Use of Proceeds") and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to, the Agreements and Instruments, nor will such action result in any violation of the provisions of the certificate of incorporation or by-laws of the Company or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of its assets, properties or operations. As used herein, a "REPAYMENT EVENT" means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder's behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company.
(k) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the Company from that set forth in the Time of Sale Prospectus.
(l) There are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party or to which any of the properties of the Company is subject (i) other than proceedings accurately described in all material respects in the Time of Sale Prospectus and proceedings that would not have a material adverse effect on the Company, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an "investment company" as such term is defined in the Investment Company Act of 1940, as amended.
(o) The Company (i) is in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (ii) has received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company.
(p) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company, except to the extent disclosed in the Prospectus.
(q) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company has not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction except to the extent incurred in the ordinary course of business; (ii) the Company has not purchased any of its outstanding capital stock (except in connection with the departure of an employee or consultant and pursuant to the terms of an existing agreement between such person and the Company), nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(r) All United States federal income tax returns of the Company required by law to be filed have been filed and all taxes shown by such returns or otherwise assessed, which are due and payable, have been paid, except assessments against which appeals have been or will be promptly taken and as to which adequate reserves have been provided. The United States federal income tax returns of the Company through the fiscal year ended December 31, 2006 have been settled and no assessment in connection therewith has been made against the Company. The Company has filed all other tax returns that are required to have been filed by it pursuant to applicable foreign, state, local or other law except insofar as the failure to file such returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company, except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided. The charges, accruals and reserves on the books of the Company in respect of any income and corporation tax liability for any years not finally determined are adequate to meet any assessments or re-assessments for additional income tax for any years not finally determined, except to the extent of any inadequacy that would not result in a Material Adverse Effect.
(s) The Company has good and marketable title in fee simple to all real property, if any, and good and marketable title to all personal property owned by it which is material to the business of the Company, in each case free and clear of all liens, encumbrances and defects except such as are described in the Time of Sale Prospectus or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and any real property and buildings held under lease by the Company are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company, in each case except as described in the Time of Sale Prospectus.
(t) The Company owns or has valid, binding and enforceable licenses or other rights to the patents and patent applications, copyrights, trademarks, service marks, trade names, service names and trade secrets reasonably necessary or used in any material respect to conduct the business of the Company in the manner described in the Prospectus (collectively, the "COMPANY INTELLECTUAL PROPERTY"), except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity; the Company is not obligated to pay a royalty, grant a license, or provide other consideration to any third party in connection with the Company Intellectual Property other than as disclosed in the Registration Statement (including the exhibits thereto); except as disclosed in the Prospectus, (i) the Company has not received any notice of infringement or conflict with asserted rights of others with respect to any Company Intellectual Property, (ii) the discoveries, inventions, products or processes of the Company referred to in the Prospectus do not, to the knowledge of the Company, infringe, interfere or conflict with any right or valid patent claim of any third party, and (iii) no third party has any ownership right in or to any Company Intellectual Property that is owned by the Company, other than any co-owner of any patent constituting Company Intellectual Property who is listed on the records of the United States Patent and Trademark Office (the "PTO") and any co-owner of any patent application constituting Company Intellectual Property who is named in such patent application, and, to the knowledge of the Company, no third party has any ownership right in or to any Company Intellectual Property that is licensed to the Company, other than any licensor to the Company of such Company Intellectual Property.
(u) All patent applications owned by the Company and filed with the PTO or any foreign or international patent authority (the "COMPANY PATENT Applications") have been duly and properly filed; the Company has complied with its duty of candor and disclosure to the PTO for the Company Patent Applications; the Company is not aware of any facts required to be disclosed to the PTO that were not disclosed to the PTO and which would preclude the grant of a patent for the Company Patent Applications; and the Company has no knowledge of any facts which would preclude it from having clear title to the Company Patent Applications that have been identified by the Company as being exclusively owned by the Company.
(v) No material labor dispute with the employees of the Company exists, except as described in the Time of Sale Prospectus, or, to the knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company.
(w) The Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which it is engaged. The Company has never
been refused any insurance coverage sought or applied for and the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Company, except as described in the Time of Sale Prospectus.
(x) The Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct its business, including without limitation all such certificates, authorizations and permits required by the United States Food and Drug Administration (the "FDA") or any other federal, state or foreign agencies or bodies engaged in the regulation of pharmaceuticals or biohazardous materials, and the Company has not received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company, except as described in the Time of Sale Prospectus.
(y) The studies, tests and preclinical and clinical trials conducted by or on behalf of the Company that are described in the Registration Statement and the Prospectus were and, if still pending, are, to the Company's knowledge, being conducted in all material respects in accordance with experimental protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company; the descriptions of the results of such studies, tests and trials contained in the Registration Statement and the Prospectus do not contain any misstatement of a material fact or omit to state a material fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or trials not described in the Registration Statement and the Prospectus the results of which reasonably call into question the results of the studies, tests and trials described in the Registration Statement or Prospectus; and the Company has not received any notices or correspondence from the FDA or any foreign, state or local governmental body exercising comparable authority or any Institutional Review Board or comparable authority requiring the termination, suspension or material modification of any studies, tests or preclinical or clinical trials conducted by or on behalf of the Company which termination, suspension or material modification would reasonably be expected to have a material adverse effect on the Company.
(z) The Company has taken all necessary actions to ensure that, upon the effectiveness of the Registration Statement, it will be in compliance with all provisions of the Sarbanes-Oxley Act of 2002 and all rules and regulations promulgated thereunder or implementing the provisions thereof (the "Sarbanes-Oxley Act") that are then in effect and which the Company is required to comply with as of the effectiveness of the Registration Statement, and is actively taking
steps to ensure that it will be in compliance with other provisions of the
Sarbanes-Oxley Act not currently in effect, upon the effectiveness of such
provisions, or which will become applicable to the Company at all times after
the effectiveness of the Registration Statement. The Company maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Except as described in the Time of Sale Prospectus,
since the end of the Company's most recent audited fiscal year, there has been
(i) no material weakness in the Company's internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company's
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company's internal control over
financial reporting.
(aa) Except as described in the Time of Sale Prospectus, the Company has not sold, issued or distributed any shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(bb) Each material contract, agreement and license to which the Company is bound is valid, binding, enforceable, and in full force and effect against the Company, and to the knowledge of the Company, each other party thereto, except as enforceability may be limited by bankruptcy and other similar laws affecting the rights of creditors generally and general principles of equity. Neither the Company nor, to the Company's knowledge, any other party is in breach or default in any material respect with respect to any such contract, agreement and license, and, to the Company's knowledge, no event has occurred which with notice or lapse of time would constitute a material breach or default, or permit termination, modification, or acceleration, under any such contract, agreement or license. No party has repudiated any material provision of any such contract, agreement or license.
(cc) There are no outstanding loans, advances (except normal advances for business expenses in the ordinary course of business) or guarantees or indebtedness by the Company to or for the benefit of any of the executive officers or directors of the Company, except as disclosed in the Time of Sale Prospectus or the Prospectus.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective numbers of Firm Shares set forth in Schedule I hereto opposite its name at $______ a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to an aggregate _______________ Additional Shares at the Purchase Price. You may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 4 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an "OPTION CLOSING DATE"), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Company is further advised by you that the Shares are to be offered to the public initially at $_____________ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected by you at a price that represents a concession not in excess of $______ a share under the Public Offering Price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $_____ a share, to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on ___________, 2007 or at such other time on the same or such other date, not later than ___________, 2007, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 2 or at such other time on the same or on such other date, in any event not later than ___________, 2007, as shall be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than _____ (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the Representatives' judgment, is material and adverse and that makes it, in the Representatives' judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by the chief executive officer and chief financial officer of the Company, to the effect that there has been no occurrence or notice of any of the events referred to in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date, and that no stop order suspending effectiveness of the Registration Statement has been issued and no proceedings for such purpose instituted or pending or contemplated by the SEC.
The officers signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Bingham McCutchen LLP, outside counsel for the Company, dated the Closing Date, to the effect that:
(i) the Company has been incorporated, is validly existing as a corporation in good standing under the laws of the State of Delaware, has the corporate power and authority necessary to own its property and to conduct the business in which it is engaged as described in the Time of Sale Prospectus, and is qualified to do business and is in good standing as a foreign corporation in the State of New Jersey;
(ii) the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained under the caption "Description of Capital Stock" of each of the Time of Sale Prospectus and the Prospectus;
(iii) based solely upon our review of the restated charter and copies of the Company's corporate minutes and stock records which are in our possession, after giving effect to the filing of the restated charter, the shares of Common Stock outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable;
(iv) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Shares to the Underwriters is not subject to any preemptive or similar rights under the Delaware General Corporation Law, the restated charter or the by-laws of the Company or any document filed as an exhibit to the Registration Statement;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not (a) violate any law, rule or regulation applicable to the Company or any existing provision of the restated charter or by-laws of the Company or, (b) to our knowledge, result in a breach of or constitute a default under, or give rise to a right of termination by any party to, any of the agreements filed as an exhibit to the Registration Statement or (c) violate any judgment, order or decree of any governmental body, agency or court that, to our knowledge, has jurisdiction over the Company; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the due execution and delivery by the Company of this Agreement and the issuance and sale of the Shares, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares and except for the registration of the Shares under the Securities Act and any consents, approvals, authorizations, orders or qualifications as may be required under the rules and regulations of the Nasdaq Global Market or the National Association of Securities Dealers;
(vii) the statements included in (A) the Time of Sale Prospectus and the Prospectus under the caption "Description of Capital Stock," (B) the Prospectus under the caption "Underwriters" and (C) the Registration Statement in Items 14 and 15, in each case insofar as such statements purport to summarize certain legal matters or documents referred to therein, fairly summarize the matters described therein in all material respects;
(viii) to our knowledge, except as described in the Time of Sale Prospectus and the Prospectus, there are no legal or governmental proceedings pending or threatened to which the Company is a party that are required under the Securities Act to be described in the Registration Statement or the Prospectus that are not so described;
(ix) the Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder.
In addition, such counsel will include the following negative assurance sin a separate letter:
(i) We have participated in conferences with officers and other representatives of the Company, in-house counsel for the Company, special intellectual property counsel to the Company, special regulatory counsel to the Company, you, and counsel for the Underwriters, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed.
(ii) On the basis of and subject to the foregoing, (a) the Registration Statement, as of the effective date thereof, and the Prospectus, as of its date, (except for the financial statements, financial schedules and other financial data, and accounting information included or incorporated by reference therein or in the exhibits to the Registration Statement (collectively, the "Financial Data") as to which we express no comment) appeared on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and (b) nothing has come to our attention that has caused us to believe that, (1) at the time the Registration Statement became effective, the Registration Statement (except for the Financial Data as to which we express no comment) contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) the Time of Sale Prospectus (except for the Financial Data as to which we express no comment) as of the date of this Agreement or as amended or supplemented, if applicable, as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (3) the Prospectus (except for the Financial Data as to which we express no comment) as of its date or as amended or supplemented, if applicable, as of the Closing Date contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The opinion and negative assurances letter described in this Section 5(c) shall be rendered to the Underwriters at the request of the Company and shall so state therein.
(d) The Underwriters shall have received on the Closing Date an opinion of Baker Botts LLP, special intellectual property counsel to the Company, dated the Closing Date, substantially in the form of Exhibit A hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of Hyman, Phelps & McNamara, P.C., special Food and Drug Administration counsel to the Company, dated the Closing Date, substantially in the form of Exhibit B hereto.
(f) The Underwriters shall have received on the Closing Date an opinion and negative assurances letter of Ropes & Gray LLP, counsel for the Underwriters, dated the Closing Date, covering the matters referred to in clauses 5(c)(iv), 5(c)(v), 5(c)(vii) (but only as to the statements in each of the Time of Sale Prospectus and the Prospectus under "Underwriters") and the paragraph following Section 5(c)(ix) above.
With respect to the negative assurances set forth above, such counsel may state that their opinion and belief is based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young, independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a "cut-off date" not earlier than the date hereof.
(h) The "lock-up" agreements, each substantially in the form of Exhibit C hereto, between you and certain shareholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) The NASD shall have confirmed that it has not raised any objection with respect to the fairness and reasonableness of the underwriting terms and arrangements.
The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of such documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
6. Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, _____ signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits
thereto) and to furnish to you in New York City, without charge, prior to 10:00
a.m. New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(e) or 6(f) below, as many
copies of the Time of Sale Prospectus, the Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of the Representatives or in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule
173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of the Representatives or in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request.
(h) To make generally available to the Company's security holders and to you as soon as practicable an earning statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company's counsel (including but not limited to the Company's outside corporate, regulatory and intellectual property counsel) and the Company's accountants in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of
the Shares for offer and sale under state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the National Association of Securities Dealers, Inc., (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Common Stock and all costs and expenses incident to listing the Shares on the Nasdaq Global Market, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic roadshow, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, (ix) the document production charges and expenses associated with printing this Agreement, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled "Indemnity and Contribution" and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.
The Company also covenants with each Underwriter that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the period ending 180 days after the date of the Prospectus, (1) 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 (2) 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, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to
(a) the Shares to be sold hereunder, (b) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof of which the Underwriters have been
advised in writing, or (c) the issuance or granting by the Company of equity
incentives authorized under any of its equity incentive or stock purchase plans
as of the date of this Agreement provided that any recipient of such issuance or
grant executes a "lock-up" agreement substantially in the form of Exhibit C
hereto. Notwithstanding the foregoing, if (1) during the last 17 days of the
180-day restricted period the Company issues an earnings release or material
news or a material event relating to the Company occurs; or (2) prior to the
expiration of the 180-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the 180-day period, the restrictions imposed by this agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the occurrence of the material news or material event. The
Company shall promptly notify the Representatives of any earnings release, news
or event that may give rise to an extension of the initial 180-day restricted
period.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter, each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and each affiliate of any Underwriter within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) of the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule
433(d) of the Securities Act, or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred
to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.
9. Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the Nasdaq Global Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities, (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the Representatives' judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus, or (vi) there shall have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the Representatives' judgment, is material
and adverse and that makes it, in the Representatives' judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of the Representatives, at the addresses specified above, with a copy to the Legal Department; and if to the Company shall be delivered, mailed or sent to 6 Cedar Brook Drive, Cranbury, New Jersey 08512, Attention: Douglas A Branch, Esq., with a copy to Bingham McCutchen LLP, 150 Federal Street, Boston, Massachusetts 02110-1726, Attention: Julio Vega, Esq.
[ Signature Page Follows ]
Very truly yours,
AMICUS THERAPEUTICS, INC.
Title:
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Acting severally on behalf of themselves
and the several Underwriters named
in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By: Merrill Lynch, Pierce, Fenner &
Smith Incorporated
SCHEDULE I
NUMBER OF UNDERWRITER SHARES ----------- --------- Morgan Stanley & Co. Incorporated.......... Merrill Lynch, Pierce, Fenner & Smith Incorporated................... J.P. Morgan Securities Inc................. Lazard Capital Markets LLC................. Pacific Growth Equities, LLC............... --------- Total................................ ========= |
SCHEDULE II
TIME OF SALE PROSPECTUS
1. Preliminary Prospectus issued [date]
2. [identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act]
3. [free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet]
4. [orally communicated pricing information to be included on Schedule II if a final term sheet is not used] [to be discussed]
II-1
EXHIBIT A
FORM OF OPINION OF BAKER & BOTTS LLP
[SEE ATTACHED]
[FORM OF OPINION of BAKER & BOTTS LLP]
_______ ___, 2007
Morgan Stanley & Co. Incorporated
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
as Representatives of the several Underwriters
c/o Morgan Stanley & Co. Incorporated 1585 Broadway New York, New York 10036 Merrill Lynch, Pierce, Fenner & Smith Incorporated 4 World Trade Financial Center New York, New York 10080 Re: Opinion of Patent Counsel to Amicus Therapeutics, Inc. |
Dear Ladies and Gentlemen:
We have been retained by the Amicus Therapeutics, Inc. (the "Company"), as special intellectual property counsel to review the information relating to the Company's intellectual property contained in specified sections of the (i) the Registration Statement on Form S-1 (Registration No. 333-_______ ) filed by the Company under the Securities Act of 1933, as amended (the "1933 Act"), [as amended by _______], at the time it became effective under the 1933 Act (the "Registration Statement") and (ii) the prospectus, dated __________ ___, 2007, in the form filed by the Company under Section 424(b)(4) of the 1933 Act (the "Prospectus") [to be confirmed when the Prospectus is filed]. We have not been retained or engaged by the Company to pass upon any other information in the Registration Statement or the Prospectus, nor have we acted as counsel to the Company in any other capacity in connection with the offer and sale of the securities described in the Registration Statement or the Prospectus. This opinion is provided to you at the request of the Company pursuant to Section 5(d) of the Underwriting Agreement dated ______, 2007 (the "Underwriting Agreement") [to be confirmed when the Underwriting Agreement is finalized], among the Company and the several Underwriters named in Schedule I thereto. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to such terms in the Underwriting Agreement.
In our capacity as special intellectual property counsel to the Company and in the course of our representation, we have reviewed the following sections (the "Sections") under the captions "RISK FACTORS -- Risks Related to Our Intellectual Property" and "BUSINESS -- Intellectual Property" in the Registration Statement, the Prospectus and the Time of Sale Prospectus, except for any free writing prospectus not listed on attached Schedule A:
RISK FACTORS
RISKS RELATED TO OUR INTELLECTUAL PROPERTY
IF WE ARE UNABLE TO OBTAIN AND MAINTAIN PROTECTION FOR THE INTELLECTUAL PROPERTY RELATING TO OUR TECHNOLOGY AND PRODUCTS, THE VALUE OF OUR TECHNOLOGY AND PRODUCTS WILL BE ADVERSELY AFFECTED.
IF WE FAIL TO COMPLY WITH OUR OBLIGATIONS IN OUR INTELLECTUAL PROPERTY LICENSES WITH THIRD PARTIES, WE COULD LOSE LICENSE RIGHTS THAT ARE IMPORTANT TO OUR BUSINESS.
IF WE ARE UNABLE TO PROTECT THE CONFIDENTIALITY OF OUR PROPRIETARY INFORMATION AND KNOW-HOW, THE VALUE OF OUR TECHNOLOGY AND PRODUCTS COULD BE ADVERSELY AFFECTED.
IF WE INFRINGE OR ARE ALLEGED TO INFRINGE INTELLECTUAL PROPERTY RIGHTS OF
THIRD PARTIES, IT WILL ADVERSELY AFFECT OUR BUSINESS.
BUSINESS
INTELLECTUAL PROPERTY -- PATENTS AND TRADE SECRETS
INTELLECTUAL PROPERTY -- LICENSE AGREEMENTS
Specifically, based on facts known to us at this time and without having made a special investigation, we are of the opinion as to the Company's patents or patent applications prosecuted or being prosecuted by us that are owned or exclusively licensed by the Company (the "Owned Patents") and patents and patent applications owned by third parties that we have not prosecuted and that have been licensed to the Company (collectively with the Owned Patents, the "Patents", listed in the attached Schedule B) that:
(i) Except as disclosed in the Registration Statement, the Prospectus and the Time of Sale Prospectus, to our knowledge, no person or entity has asserted any ownership rights in any of the Patents other than the owner identified in the records in the United States Patent and Trademark Office ("USPTO"). In addition, we have filed and
recorded an assignment in the USPTO for each of the Owned Patents that is a non-provisional patent application or issued patent, in which the named inventor(s) of such Owned Patents assigned their rights in those Owned Patents to the Company or the Company's Licensor, as appropriate; or if the assignment has not been executed we believe the Company is entitled to receive the assignment and the inventor(s) will provide the assignment. To our knowledge, no liens have been filed against any of the Patents in the USPTO.
(ii) We have filed and prosecuted each of the Owned Patents in accordance with the patent statutes and the USPTO Rules of Practice.
(iii) We have complied and are continuing to comply on an ongoing basis with the required duty of candor and good faith in dealing with the USPTO with respect to the patents or patent applications prosecuted or being prosecuted by us, including the duty to disclose to the USPTO all information known to us to be material to the patentability of each of the Owned Patents.
In the course of our assistance in the preparation and review of the Sections, we have participated in conferences with officers and other representatives of the Company, at which the contents of the Sections were discussed, and although we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements in the Sections, on the basis of the foregoing, nothing has come to our attention that has caused us to believe that (i) as of the effective date of the Registration Statement, the Sections contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements in the Sections not misleading, (ii) as of the date of the Prospectus or as of the date hereof, the Sections contained or contain any untrue statement of a material fact or omitted or omit to state any material fact necessary in order to make the statements in the Sections, in the light of the circumstances under which they were made, not misleading, or (iii) as of the date of the Time of Sale Prospectus, the Sections contained or contain any untrue statement of a material fact or omitted or omit to state any material fact necessary in order to make the statements in the Sections, in the light of the circumstances under which they were made, not misleading. Except as set forth in the Prospectus, there is no claim, action, proceeding or litigation relating to the Patents or patent rights of others that is pending or threatened against the Company before any court, governmental or administrative agency or body of which we are aware.
To the extent the statements made in the Sections constitute summaries of law, documents or legal proceedings, in our opinion, such statements accurately summarize in all material respects the provisions of the laws, documents and proceedings referred to therein.
Phrases herein such as "to our knowledge," "known to us," or "of which we are aware," and those with equivalent wording, refer to the conscious awareness of information by the lawyers of this Firm who have prepared this opinion, without any independent investigation by any lawyer of this Firm.
We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this letter. This letter has been prepared solely for your use in connection with the closing on the date hereof of the sale of the Company's Common Stock as contemplated by the Prospectus, and shall not be relied upon, quoted in whole or in part or otherwise be referred to, nor be filed with or furnished to any government agency or other person or entity, without prior written consent of this firm.
Sincerely,
SCHEDULE A -- FREE WRITING PROSPECTUSES REVIEWED
SCHEDULE B -- PATENTS
[table of patents licensed by or assigned to Amicus; to be prepared]
EXHIBIT B
FORM OF OPINION OF HYMAN, PHELPS & MCNAMARA, P.C.
[SEE ATTACHED]
DIRECT DIAL (202) 737-5600
[CLOSING DATE]
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
New York, New York 1080
As Representatives of the several Underwriters
Re: Opinion of FDA Regulatory Counsel to Amicus Therapeutics, Inc.
Ladies and Gentlemen:
This opinion letter is being furnished to you at the request of Amicus Therapeutics, Inc. (the "Company"), a Delaware corporation, pursuant to Section 5(e) of the Underwriting Agreement dated _______________ between you and the Company (the "Underwriting Agreement"), relating to the public offering by the Company of 5,000,000 shares of the Company's common stock, par value $0.01 per share (the "Offering"). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Underwriting Agreement.
We have been retained by the Company to act as U.S. Food and Drug Administration ("FDA") regulatory counsel for the limited purpose of reviewing the information relating to FDA regulatory matters contained in certain sections of the Company's Registration Statement on Form S-1 (File No. 333.141700), which was filed with the Securities and Exchange Commission ("SEC") on __________ (the
"Registration Statement") and final Prospectus dated ____________________ (the "Prospectus") specified below. We have not been retained by the Company or anyone else to pass upon any other information in the Registration Statement or Prospectus.
For purposes of this opinion letter, "FDA Laws", laws that we specialize in, shall mean the Federal Food, Drug, and Cosmetic Act (the "FDC Act") set forth at 21 U.S.C. Section 301 et seq., the regulations promulgated under the authority of the FDC Act, the enforcement of the FDC Act by the FDA, and judicial and administrative decisions under the FDC Act.
In connection with this opinion letter, at your direction, we have reviewed and relied upon only the Officer's Certificate, dated ___________, signed by ______________, [title], certifying certain facts relating to the Company (the "Officer's Certificate") and attached here as Attachment A, and information in the Registration Statement and Prospectus pertaining to FDA regulatory matters under the following captions (collectively referred to herein as the "Designated Regulatory Provisions"):
RISK FACTORS
RISKS RELATED TO THE DEVELOPMENT AND COMMERCIALIZATION OF OUR PRODUCT CANDIDATES
INITIAL RESULTS FROM A CLINICAL TRIAL DO NOT ENSURE THAT THE TRIAL WILL BE SUCCESSFUL AND SUCCESS IN EARLY STAGE CLINICAL TRIALS DOES NOT ENSURE SUCCESS IN LATER-STAGE CLINICAL TRIALS.
IF OUR PRECLINICAL STUDIES DO NOT PRODUCE POSITIVE RESULTS, IF OUR CLINICAL TRIALS ARE DELAYED OR IF SERIOUS SIDE EFFECTS ARE IDENTIFIED DURING DRUG DEVELOPMENT, WE MAY EXPERIENCE DELAYS, INCUR ADDITIONAL COSTS AND ULTIMATELY BE UNABLE TO COMMERCIALIZE OUR PRODUCT CANDIDATES.
If we are unable to obtain adequate reimbursement from governments or third party payors for any products that we may develop or if we are unable to obtain acceptable prices for those products, our prospects for generating revenue and achieving profitability will suffer.
RISKS RELATED TO OUR DEPENDENCE ON THIRD PARTIES
USE OF THIRD PARTIES TO MANUFACTURE OUR PRODUCT CANDIDATES MAY INCREASE THE RISK THAT WE WILL NOT HAVE SUFFICIENT QUANTITIES OF OUR PRODUCT CANDIDATES OR SUCH QUANTITIES AT AN ACCEPTABLE COST, AND CLINICAL DEVELOPMENT AND COMMERCIALIZATION OF OUR PRODUCT CANDIDATES COULD BE DELAYED, PREVENTED OR IMPAIRED.
WE RELY ON THIRD PARTIES TO CONDUCT OUR CLINICAL TRIALS AND THOSE THIRD PARTIES MAY NOT PERFORM SATISFACTORILY, INCLUDING FAILING TO MEET ESTABLISHED DEADLINES FOR THE COMPLETION OF SUCH TRIALS.
RISKS RELATED TO REGULATORY APPROVAL OF OUR PRODUCT CANDIDATES
IF WE ARE NOT ABLE TO OBTAIN AND MAINTAIN REQUIRED REGULATORY APPROVALS, WE WILL NOT BE ABLE TO COMMERCIALIZE OUR PRODUCT CANDIDATES, AND OUR ABILITY TO GENERATE REVENUE WILL BE MATERIALLY IMPAIRED.
OUR PRODUCT CANDIDATES MAY CAUSE UNDESIRABLE SIDE EFFECTS OR HAVE OTHER PROPERTIES THAT COULD DELAY OR PREVENT THEIR REGULATORY APPROVAL OR COMMERCIALIZATION.
WE MAY NOT BE ABLE TO OBTAIN ORPHAN DRUG EXCLUSIVITY FOR OUR PRODUCT CANDIDATES. IF OUR COMPETITORS ARE ABLE TO OBTAIN ORPHAN DRUG EXCLUSIVITY FOR THEIR PRODUCTS THAT ARE THE SAME DRUG AS OUR PRODUCT CANDIDATES, WE MAY NOT BE ABLE TO HAVE COMPETING PRODUCTS APPROVED BY THE APPLICABLE REGULATORY AUTHORITY FOR A SIGNIFICANT PERIOD OF TIME.
ANY PRODUCT FOR WHICH WE OBTAIN MARKETING APPROVAL COULD BE SUBJECT TO RESTRICTIONS OR WITHDRAWAL FROM THE MARKET AND WE MAY BE SUBJECT TO PENALTIES IF WE FAIL TO COMPLY WITH REGULATORY REQUIREMENTS OR IF WE EXPERIENCE UNANTICIPATED PROBLEMS WITH OUR PRODUCTS, WHEN AND IF ANY OF THEM ARE APPROVED.
BUSINESS
OUR LEAD PRODUCT CANDIDATES
AMIGAL FOR FABRY DISEASE -- EXISTING PRODUCTS FOR THE TREATMENT OF FABRY DISEASE AND POTENTIAL ADVANTAGES OF AMIGAL (THE FIRST AND FOURTH PARAGRAPHS ONLY)
PLICERA FOR GAUCHER DISEASE -- EXISTING PRODUCTS FOR THE TREATMENT OF GAUCHER DISEASE AND POTENTIAL ADVANTAGES OF PLICERA (THE FIRST AND FOURTH PARAGRAPHS ONLY)
AT2220 FOR POMPE DISEASE -- EXISTING PRODUCTS FOR THE TREATMENT OF POMPE DISEASE AND POTENTIAL ADVANTAGES OF AT2220 (THE FIRST AND THIRD PARAGRAPHS ONLY)
GOVERNMENT REGULATION
PHARMACEUTICAL PRICING AND REIMBURSEMENT
We have relied with your approval solely upon our examination of the Designated Regulatory Provisions.
We have assumed with your approval the accuracy and completeness of all statements of fact relating to the Company and the status of its products and you have not asked us to make, and we have not made, any independent investigations with regard to such matters for purposes of rendering the opinions herein. We have further assumed that with respect to the laws identified above, all statutes, judicial and administrative decisions, and rules and regulations of governmental agencies or self regulatory bodies, applicable to this opinion letter, are generally available to lawyers practicing in the area of the FDA laws and are in a format that makes legal research reasonably feasible.
Further, we have not independently verified, nor do we take any responsibility for, or are we in any way addressing, any statements of belief attributable to the Company or whether or not the Company is in compliance with the FDA Laws.
This opinion is to the best of our knowledge and is based solely on matters of law as they pertain to FDA Laws, as implemented by FDA, and we express no opinion as to any other federal, state, local or foreign laws, statutes, regulations or ordinances.
For purposes of this opinion, the expression "to the best of our knowledge" means the current actual knowledge of the attorneys in this firm who have been significantly involved in actively representing the Company, or in connection with matters related to the Offering, without having conducted any special investigation of factual matters in connection with this opinion letter.
Based on, subject to, and limited by the foregoing, we are of the opinion that:
(i) Insofar as the statements in the Designated Regulatory Provisions of the Registration Statement and Prospectus purport to describe or summarize applicable provisions of the FDA Laws, such statements fairly summarize such FDA Laws and are accurate in all material respects, subject to any qualifications set forth therein; and
(ii) Nothing has come to our attention which causes us to believe that the Designated Regulatory Provisions, at the time the Registration Statement became effective and at all times subsequent thereto up to and on the Closing Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
* * * *
This opinion letter is given as of the date hereof and we assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion. This opinion is solely for the information of the addressee hereof and is not to be quoted in whole or in part or otherwise referred to, nor is it to be filed with any governmental agency or any other person without our prior written consent. No one other than the addressee hereof is entitled to rely on this opinion. This opinion is rendered solely for purposes of the Offering and should not be relied upon for any other purpose. Nothing herein should be construed to cause us to be considered "experts" within the meaning of Section 11 of the Securities Act of 1933, as amended.
Sincerely,
Hyman, Phelps & McNamara, P.C.
EXHIBIT C
FORM OF LOCK-UP LETTER
[SEE ATTACHED]
________________, 2007
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial center
New York, New York, 10080
As Representatives of the several Underwriters to be named in the within mentioned Underwriting Agreement
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. Incorporated ("MORGAN Stanley") and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("MERRILL LYNCH") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") in their capacity as representatives of the several underwriters referred to therein (together with Morgan Stanley and Merrill Lynch, the "UNDERWRITERS") with Amicus Therapeutics, Inc., a Delaware corporation (the "COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the Underwriters of shares (the "SHARES") of the Common Stock, $0.01 par value per share, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley and Merrill Lynch on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) 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, directly or indirectly, convertible into or exercisable or exchangeable for Common Stock whether now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition, or (2) 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, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
transactions relating to (a) shares of Common Stock or other securities acquired
in open market transactions after the completion of the Public Offering,
provided that no filing under Section 16(a) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), shall be required or shall be voluntarily
made in connection with subsequent sales of Common Stock or other securities
acquired in such open market transactions, (b) transfers of shares of Common
Stock or any security, directly or indirectly, convertible into Common Stock as
a bona fide gift or in connection with estate planning or by intestacy, or (c)
distributions of shares of Common Stock or any security, directly or indirectly,
convertible into Common Stock to limited partners, members, stockholders or
affiliates of the undersigned; provided that in the case of any transfer or
distribution pursuant to clause (b) or (c), (i) each donee or distributee shall
sign and deliver a lock-up letter substantially in the form of this letter and
(ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of Common Stock, shall be required or shall be
voluntarily made during the restricted period referred to in the foregoing
sentence. In addition, the undersigned agrees that, without the prior written
consent of Morgan Stanley and Merrill Lynch on behalf of the Underwriters, it
will not, during the period commencing on the date hereof and ending 180 days
after the date of the Prospectus, make any demand on the Company for or exercise
any right with respect to, the registration of any shares of Common Stock or any
security, directly or indirectly, convertible into or exercisable or
exchangeable for Common Stock. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the undersigned's shares of Common Stock
except in compliance with the foregoing restrictions.
If:
(1) during the last 17 days of the 180-day restricted period, the Company issues an earnings release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 180-day restricted period, the Company announces that it will release earnings results during the 16-day period beginning on the last day of the 180-day restricted period;
the restrictions imposed by this agreement shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.
On or about the date hereof, Morgan Stanley and Merrill Lynch on behalf of Underwriters have received or will receive from certain other holders of shares of Common Stock written agreements setting forth terms similar to this agreement (the "LOCK-UP AGREEMENTS"). In the event that Morgan Stanley and Merrill Lynch on behalf of the Underwriters release for sale or other disposition for value any shares of Common Stock held by such other holders from the restrictions set forth in the Lock-Up Agreements, the same percentage of shares of Common Stock (i.e., percentage as compared to total outstanding share capital) held by the undersigned shall be immediately and fully released; provided that no shares of Common Stock held by the undersigned will be so released unless and until more than 3% of the Company's total outstanding shares of Common Stock in aggregate have been released from restrictions set forth in the Lock-Up Agreements; provided further that the undersigned will not be entitled to make any demand for or exercise any right with respect to the registration of such released shares of Common Stock until the expiration of this agreement. In the event that, as a result of the foregoing sentence, Morgan Stanley and Merrill Lynch release any shares of Common Stock from the restrictions set forth above, they shall use their commercially reasonable efforts to notify the undersigned within three business days that the same percentage of shares of Common Stock held by the undersigned has been released; provided that the failure to give such notice shall not give rise to any claim against or result in liability to Morgan Stanley, Merrill Lynch, or the Underwriters.
The undersigned understands that the Company and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this agreement is irrevocable and shall be binding upon the undersigned's heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters and there is no assurance that the Company and the Underwriters will enter into an Underwriting Agreement with respect to the Public Offering or that the Public Offering will be consummated.
This agreement shall automatically terminate upon the earliest to occur, if any, of (a) either Morgan Stanley and Merrill Lynch, on the one hand, or the Company, on the other hand, advising the other in writing, prior to the execution of the Underwriting Agreement, that they have determined not to proceed with the Public Offering, (b) termination of the Underwriting Agreement before the sale of any Shares to the Underwriters, or (c) October 31, 2007, in the event that the Underwriting Agreement has not been executed by that date.
Very truly yours,
EXHIBIT 3.2
RESTATED CERTIFICATE OF INCORPORATION
OF
AMICUS THERAPEUTICS, INC.
Incorporated pursuant to a Certificate of Incorporation initially filed with the Secretary of State of the State of Delaware on February 4, 2002 Under the Name Amicus Therapeutics, Inc.
Amicus Therapeutics, Inc., a Delaware corporation (the "Corporation"), hereby certifies that this Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 228, 242, and 245 of the General Corporation Law of the State of Delaware (the "DGCL"), and notice thereof has been given in accordance with the provisions of Section 228 of the DGCL:
FIRST: The name of the Corporation is Amicus Therapeutics, Inc.
SECOND: The address of the Corporation's registered office in the State of Delaware is c/o Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The registered agent in charge thereof is The Corporation Trust Company.
THIRD: The nature of the business and purposes to be conducted or promoted by the Corporation are as follows:
To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is Sixty Million shares, consisting solely of:
Fifty Million (50,000,000) shares of common stock, par value $.01 per share ("Common Stock"); and
Ten Million (10,000,000) shares of preferred stock, par value $.01 per share ("Preferred Stock").
The following is a statement of the powers, designations, preferences, privileges, and relative rights in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders of Common Stock are subject to and qualified by the rights of the holders of Preferred Stock.
2. Voting. The holders of Common Stock are entitled to one vote for each share held at all meetings of stockholders. There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor if, as and when determined by the board of directors of the Corporation (the "Board of Directors") and subject to any preferential dividend rights of any then outstanding shares of Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation, whether voluntary or involuntary, holders of Common Stock will be entitled to receive all assets of the Corporation available for distribution to its stockholders, subject to any preferential rights of any then outstanding shares of Preferred Stock.
B. PREFERRED STOCK.
Shares of Preferred Stock may be issued from time to time in one or more series, each of such series to have such powers, designations, preferences, and relative, participating, optional, or other special rights, if any, and such qualifications and restrictions, if any, of such preferences and rights, as are stated or expressed in the resolution or resolutions of the Board of Directors providing for such series of Preferred Stock. Different series of Preferred Stock shall not be construed to constitute different classes of shares for the purposes of voting by classes unless expressly so provided in such resolution or resolutions.
Authority is hereby granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation of any such series, by resolution or resolutions to determine and fix the powers, designations, preferences, and relative, participating, optional, or other special rights, if any, and the qualifications and restrictions, if any, of such preferences and rights, including without limitation dividend rights, conversion rights, voting rights (if any), redemption privileges, and liquidation preferences, of such series of Preferred Stock (which need not be uniform among series), all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing, the resolution or resolutions providing for the creation or issuance of any series of Preferred Stock may provide that such series shall be superior to, rank equally with, or be junior to the Preferred Stock of any other series, all to the fullest extent permitted by law. No resolution, vote, or consent of the holders of the capital stock of the Corporation shall be required in connection with the creation or issuance of any shares of any series of Preferred Stock authorized by and complying with the conditions of this Restated Certificate of Incorporation, the right to any such resolution, vote, or consent being expressly waived by all present and future holders of the capital stock of the Corporation.
Any resolution or resolutions adopted by the Board of Directors pursuant to the authority vested in them by this Article Fourth shall be set forth in a certificate of designation along with the number of shares of stock of such series as to which the resolution or resolutions shall apply and such certificate shall be executed, acknowledged, filed, recorded, and shall become effective, in accordance with Section 103 of the DGCL. Unless otherwise provided in any such resolution or resolutions, the number of shares of stock of any such series to which such resolution or resolutions apply may be increased (but not above the total number of authorized shares of the class) or decreased (but not below the number of shares thereof then outstanding) by a certificate likewise executed, acknowledged, filed and recorded, setting forth a statement that a specified increase or decrease therein has been authorized and directed by a resolution or resolutions likewise adopted by the Board of Directors. In case the number of such shares shall be decreased, the number of shares so specified in the certificate shall resume the status which they had prior to the adoption of the first resolution or resolutions. When no shares of any such class or series are outstanding, either because none were issued or because none remain outstanding, a certificate setting forth a
resolution or resolutions adopted by the Board of Directors that none of the authorized shares of such class or series are outstanding, and that none will be issued subject to the certificate of designations previously filed with respect to such class or series, may be executed, acknowledged, filed and recorded in the same manner as previously described and it shall have the effect of eliminating from the Restate Certificate of Incorporation all matters set forth in the certificate of designations with respect to such class or series of stock. If no shares of any such class or series established by a resolution or resolutions adopted by the Board of Directors have been issued, the voting powers, designations, preferences and relative, participating, optional or other rights, if any, with the qualifications, limitations or restrictions thereof, may be amended by a resolution or resolutions adopted by the Board of Directors. In the event of any such amendment, a certificate which (i) states that no shares of such class or series have been issued, (ii) sets forth the copy of the amending resolution or resolutions and (iii) if the designation of such class or series is being changed, indicates the original designation and the new designation, shall be executed, acknowledged, filed, recorded, and shall become effective, in accordance with Section 103 of the DGCL.
FIFTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation and for defining and regulating the powers of the Corporation and its directors and stockholders and are in furtherance and not in limitation of the powers conferred upon the Corporation by statute:
(a) The Board of Directors shall be divided into three classes of directors, as determined by the Board of Directors, such classes to be as nearly equal in number of directors as possible, having staggered three-year terms of office, the term of office of the directors of the first such class to expire as of the first annual meeting of the Corporation's stockholders following the closing of the Corporation's first public offering of shares of Common Stock registered pursuant to the Securities Act of 1933, as amended, those of the second class to expire as of the second annual meeting of the Corporation's stockholders following such closing, and those of the third class as of the third annual meeting of the Corporation's stockholders following such closing, such that at each annual meeting of stockholders after such closing, nominees will stand for election to succeed those directors whose terms are to expire as of such meeting. Any director serving as such pursuant to this paragraph (a) of Article FIFTH may be removed only for cause and only by the vote of the holders of a majority of the shares of the Corporation's stock entitled to vote for the election of directors.
(b) Except as the DGCL or the Corporation's by-laws may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director.
(c) If the office of any director becomes vacant by reason of death, resignation, disqualification, removal, failure to elect, or otherwise, the remaining directors, although more or less than a quorum, by a majority vote of such remaining directors may elect a successor or successors who shall hold office for the unexpired term.
(d) The Board of Directors shall have the power and authority:
(i) to adopt, amend or repeal the Corporation's by-laws, subject only
to such limitations, if any, as may be from time to time imposed by
other provisions of this Restated Certificate of Incorporation, by law,
or by the Corporation's by-laws; and (ii) to the full extent permitted
or not prohibited by law, and without the consent of or other action by
the stockholders, to authorize or create mortgages, pledges or other
liens or encumbrances upon any or all of the assets, real, personal or
mixed, and franchises of the Corporation, including after-acquired
property, and to exercise all of the powers of the Corporation in
connection therewith.
SIXTH: No director of the Corporation shall be personally liable to the Corporation or to any of its stockholders for monetary damages for breach of fiduciary duty as a director, notwithstanding any provision of law imposing such liability; provided, however, that to the extent required from time to time by applicable law, this Article Sixth shall not eliminate or limit the liability of a director, to the extent such liability is provided by applicable law, (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transactions from which the director derived an improper personal benefit. No amendment to or repeal of this Article Sixth shall apply to or have any effect on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring prior to the effective date of such amendment or repeal.
SEVENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the DGCL and as further provided in its by-laws, each as amended
from time to time, indemnify each person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he is or was, or has agreed to become, a director or officer of
the Corporation, or is or was serving, or has agreed to serve, at the request of
the Corporation, as a director, officer or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to
have been taken or omitted in such capacity, against all expenses (including
attorneys' fees), judgements, fines and amounts paid in settlement actually and
reasonably incurred by him or on his behalf in connection with such action, suit
or proceeding and any appeal therefrom.
Indemnification may include payment by the Corporation of expenses in defending an action or proceeding in advance of the final disposition of such action or proceeding upon receipt of an undertaking by the person indemnified to repay such payment if it is ultimately determined that such person is not entitled to indemnification under this Article Seventh, which undertaking may be accepted without reference to the financial ability of such person to make such repayment.
The Corporation shall not indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person unless the initiation thereof was approved by the Board of Directors.
The indemnification rights provided in this Article Seventh (i) shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any law, agreement or vote of stockholders or disinterested directors or otherwise, and (ii) shall inure to the benefit of the heirs, executors and administrators of such persons. The Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other
employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Article Seventh.
EIGHTH: Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the DGCL; or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the DGCL, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such a manner as the said court directs. If a majority of the number representing three-fourths (3/4ths) in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all creditors or class of creditors, and/or stockholders or class of stockholders of the Corporation, as the case may be, and also on the Corporation.
NINTH: The Board of Directors, when considering a tender offer or merger or acquisition proposal, may take into account factors in addition to potential economic benefits to stockholders, including without limitation (i) comparison of the proposed consideration to be received by stockholders in relation to the then current market price of the Corporation's capital stock, the estimated current value of the Corporation in a freely negotiated transaction, and the estimated future value of the Corporation as an independent entity and (ii) the impact of such a transaction on the employees, suppliers, and customers of the Corporation and its effect on the communities in which the Corporation operates.
TENTH: Any action required or permitted to be taken by the stockholders of the Corporation may be taken only at a duly called annual or special meeting of the stockholders, and not by written consent in lieu of such a meeting, in which such action is properly brought before such meeting. Special meetings of stockholders may be called only by the Chairman of the Board of Directors, the President, or a majority of the Board of Directors.
ELEVENTH: The affirmative vote of the holders of at least sixty seven percent (67%) of the outstanding voting stock of the Corporation (in addition to any separate class vote that may in the future be required pursuant to the terms of any outstanding Preferred Stock) shall be required to amend or repeal the provisions of Articles Fourth (only to the extent it relates to the authority of the Board of Directors to issue shares of Preferred Stock in one or more series, the terms of which may be determined by the Board of Directors), Fifth, Seventh, Tenth, or Eleventh of this Restated Certificate of Incorporation or to reduce the numbers of authorized shares of Common Stock or Preferred Stock.
[The remainder of this page is left intentionally blank.]
Executed on _________, 2007
AMICUS THERAPEUTICS, INC.
Title:
Exhibit 3.5
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AMICUS THERAPEUTICS, INC.
Amicus Therapeutics, Inc., a Delaware corporation (the "Corporation"), does hereby certify as follows:
1. The board of directors of the Corporation, acting at a meeting held on May 7, 2007, duly adopted resolutions, pursuant to Section 242 of the Delaware General Corporation Law (the "DGCL"), setting forth an amendment (the "Certificate of Amendment") to the Amended and Restated Certificate of Incorporation of the Corporation (the "Restated Charter") and declaring said Certificate of Amendment to be advisable and in the best interests of the Corporation.
2. The holders of (i) at least a majority of the outstanding shares of Series Preferred (as defined in the Restated Charter), voting together as a single class and on an as-converted basis, and (ii) at least a majority of all outstanding voting capital stock of the Corporation, voting together as a single class and on an as-converted basis, and representing not less than the minimum number of votes necessary to authorize and take the actions set forth herein, duly approved this Certificate of Amendment by written consent effective as of May 16, 2007, in accordance with Sections 228 and 242 of the DGCL.
3. Written notice of such stockholder consent shall be given to all stockholders of the Corporation who have not consented in writing to this Certificate of Amendment.
4. Effective immediately upon the filing of this Certificate of Amendment with the Secretary of State of the State of Delaware (the "Effective Time"), there is effective a 1-for-7.5 reverse stock split (the "Reverse Split") of (i) the Corporation's issued and outstanding shares of common stock, $0.01 par value per share ("Common Stock"), whereby each seven and one half (7.5) shares of Common Stock issued and outstanding or held as treasury shares immediately prior to the Effective Time (the "Old Common Stock") shall, automatically without any action on part of the holder thereof, be combined into one share of Common Stock (the "New Common Stock") and (ii) each series of the Corporation's issued and outstanding shares of preferred stock, $0.01 par value per share ("Preferred Stock"), whereby each seven and one half (7.5) shares of each series of Preferred Stock issued and outstanding or held as treasury shares immediately prior to the Effective Time (the "Old Preferred Stock" and collectively with the Old Common Stock, the "Old Stock") shall, automatically without any action on part of any holder thereof, be combined into one share of such series of Preferred Stock (the "New Preferred Stock" and collectively with the New Common Stock, the "New Stock"). Cash will be paid in lieu of any resulting fractional shares in an amount equal to the fair market value of such share as determined in good faith by the board of directors, in each case times the fractional share (rounded down to the nearest whole cent, but in no event less than one whole cent), provided that the determination of whether a holder of Old Stock has any fractional
1-
shares of New Stock as a result of the Reverse Split shall be made after
aggregating all shares of New Common Stock and New Preferred Stock,
respectively, and fractional shares thereof held by such holder immediately
after the Reverse Split. Each holder of a certificate or certificates which
immediately prior to the Effective Time represented outstanding shares of Old
Stock (the "Old Certificates") shall, from and after the Effective Time, be
entitled to receive upon surrender of such Old Certificates to the Corporation's
transfer agent for cancellation, a certificate or certificates (the "New
Certificates") representing (i) the shares of New Common Stock and New Preferred
Stock into which the shares of Old Common Stock and Old Preferred Stock,
respectively, were combined pursuant to the terms of this Section 4 and (ii) the
right to receive cash in lieu of any fractional shares of New Common Stock and
New Preferred Stock resulting from the Reverse Split as described above in this
Section 4. Until surrendered by the holder thereof, each Old Certificate shall,
from and after the Effective Time, no longer represent the shares of Old Stock
stated on the face of such Old Certificate, but shall be deemed to represent
only (x) the number of shares of New Common Stock or New Preferred Stock into
which such shares of Old Common Stock or Old Preferred Stock, respectively, were
combined as a result of the Reverse Split and (y) the right to receive cash in
lieu of any fractional shares of Common Stock or Preferred Stock resulting from
the Reverse Split as described above in this Section 4.
5. Pursuant to this Certificate of Amendment:
A. All of the text in the first two paragraphs to the preamble to Article Four, Section IV of the Restated Charter shall be deleted and replaced in its entirety with the following:
"IV
This Company is authorized to issue two classes of stock to be designated, respectively, "COMMON STOCK" and "PREFERRED STOCK." The total number of shares which the Company is authorized to issue is Thirty Seven Million Four Hundred Sixty Four Thousand Nine Hundred Seventy Eight (37,464,978) shares, Twenty One Million Three Hundred Thirty Three Thousand Three Hundred Thirty Three (21,333,333) shares of which shall be Common Stock (the "COMMON STOCK") and Sixteen Million One Hundred Thirty One Thousand Six Hundred Forty Four (16,131,644) shares of which shall be Preferred Stock (the "PREFERRED STOCK"). The Common Stock shall have a par value of $0.01 per share and the Preferred Stock shall have a par value of $0.01 per share.
Four Hundred Forty Four Thousand Four Hundred Forty Four
(444,444) of the authorized shares of Preferred Stock are
hereby designated "SERIES A CONVERTIBLE PREFERRED STOCK" (the
"SERIES A PREFERRED"), Four Million Nine Hundred Thirty Six
Thousand Seven Hundred Forty Five (4,936,745) shares of the
authorized shares of Preferred Stock are hereby designated
"SERIES B CONVERTIBLE PREFERRED Stock" (the "SERIES B
PREFERRED"), Five Million Eight Hundred Twenty Thousand Thirty
Four (5,820,034) shares of the authorized shares of Preferred
Stock are hereby designated "SERIES C CONVERTIBLE PREFERRED
STOCK" (the "SERIES C PREFERRED") and Four Million Nine
Hundred Thirty Thousand Four Hundred Nineteen (4,930,419)
shares of the authorized shares of Preferred Stock are hereby
designated "SERIES D CONVERTIBLE PREFERRED STOCK" (the "SERIES
D PREFERRED"). The Series A Preferred, Series B Preferred,
Series C Preferred and Series D Preferred are collectively
referred to herein as the "SERIES PREFERRED."
[signature page follows]
IN WITNESS WHEREOF, Amicus Therapeutics, Inc. has caused this Certificate of Amendment to its Amended and Restated Certificate of Incorporation to be executed by John F. Crowley, its President, this _____ day of ___________, 2007.
AMICUS THERAPEUTICS, INC.
3-
.
.
.
Exhibit 4.1
[AMICUS THERAPEUTICS, INC. LOGO]
NUMBER SHARES
A
INCORPORATED UNDER THE LAWS AMICUS THERAPEUTICS, INC. CUSIP 03152W 10 9 OF THE STATE OF DELAWARE SEE REVERSE FOR CERTAIN DEFINITIONS |
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK,
$.01 PAR VALUE PER SHARE, OF
----------=================AMICUS THERAPEUTICS, INC.=================---------
transferable on the books of the Corporation by said owner in person or by his duly authorized attorney upon the surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile of the Corporation's seal and the facsimile signatures of its duly authorized officers.
Dated:
----------------------- -------------------------- ------------------------------------- /s/ Illegible Signature [AMICUS THERAPEUTICS SEAL] /s/ Illegible Signature SECRETARY PRESIDENT AND CHIEF EXECUTIVE OFFICER |
COUNTERSIGNED AND REGISTERED
AMERICAN STOCK TRANSFER & TRUST COMPANY
(New York, NY)
TRANSFER AGENT AND REGISTRAR
BY:
AUTHORIZED SIGNATURE
AMICUS THERAPEUTICS, INC.
The Corporation will furnish without charge to each stockholder who so requests a statement of the powers, designations, preferences and relative, participating, optional, or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Any such request should be addressed to the Secretary of the Corporation at its principal place of business.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- Custodian ---------- -------- TEN ENT -- as tenants by the entireties (Cust) (Minor) JT TEN -- as joint tenants with right of under Uniform Gifts to Minors survivorship and not as tenants in common Act ---------------------------------------- (State) UNIF TRANS MIN ACT-- Custodian --------- -------- (Cust) (Minor) under Uniform Transfers to Minors Act ---------------------------------- (State) |
Additional abbreviations may also be used though not in the above list.
For value received, ____________________________________________hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
SIGNATURE(S) GUARANTEED
Exhibit 5.1
Bingham McCutchen LLP
150 Federal Street
Boston, Massachusetts 02110
May 17, 2007
Amicus Therapeutics, Inc.
6 Cedar Brook Drive
Cranbury, NJ 08512
Ladies and Gentlemen:
We have acted as counsel for Amicus Therapeutics, Inc., a Delaware corporation (the "Company"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of up to five million (5,000,000) shares and up to an additional seven hundred fifty thousand (750,000) shares which may be offered by the Company in order to cover over-allotments, if any, of common stock, par value $0.01 per share of the Company (the "Shares"), pursuant to a Registration Statement on Form S-1 (as amended, the "Registration Statement"), initially filed with the Securities and Exchange Commission on March 30, 2007.
We have reviewed the corporate proceedings of the Company with respect to the authorization of the issuance of the Shares. We have also examined and relied upon originals or copies, certified or otherwise identified or authenticated to our satisfaction, of such corporate records, instruments, agreements or other documents of the Company, and certificates of officers of the Company as to certain factual matters, and have made such investigation of law and have discussed with officers and representatives of the Company such questions of fact, as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form and the legal competence of each individual executing any document.
We have also assumed that an Underwriting Agreement substantially in the form of Exhibit 1.1 to the Registration Statement, by and among the Company and the underwriters named therein (the "Underwriting Agreement"), will have been duly executed and delivered pursuant to the authorizing resolutions of the Board of Directors of the Company and that the Shares will be sold and transferred only upon the payment therefor as provided in the Underwriting Agreement.
This opinion is limited solely to the Delaware General Corporation Law, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting such law, as in effect as of the date hereof.
Based upon and subject to the foregoing, we are of the opinion that the Shares to be issued and sold by the Company under the Underwriting Agreement have been duly authorized, and when delivered and paid for by the Underwriters (as such term is defined in the Underwriting Agreement) in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid and nonassessable.
Amicus Therapeutics, Inc.
May 17, 2007
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to this firm under the heading "Legal Matters" in the Registration Statement.
Very truly yours,
/s/ BINGHAM MCCUTCHEN LLP ------------------------- BINGHAM MCCUTCHEN LLP |
Exhibit 10.2
AMICUS THERAPEUTICS
2007 EQUITY INCENTIVE PLAN
1. PURPOSE
This Plan is intended to encourage ownership of Common Stock by
employees, consultants and directors of the Company and its Affiliates and to
provide additional incentive for them to promote the success of the Company's
business through the grant of Awards of shares of the Company's Common Stock.
The Plan is intended to be an incentive stock option plan within the meaning of
Section 422 of the Code but not all Awards granted hereunder are required to be
Incentive Options.
2. DEFINITIONS
As used in the Plan the following terms shall have the respective meanings set out below, unless the context clearly requires otherwise:
2.1. "Accelerate", "Accelerated", and "Acceleration", when used with respect to an Option, means that as of the time of reference such Option will become exercisable with respect to some or all of the shares of Common Stock for which it was not then otherwise exercisable by its terms, and, when used with respect to Restricted Stock or Restricted Stock Units, as the case may be, means that the Risk of Forfeiture otherwise applicable to such Restricted Stock or Restricted Stock Units, as the case may be, shall expire with respect to some or all of the shares of Restricted Stock or some or all of the Restricted Stock Units, as the case may be, then still otherwise subject to the Risk of Forfeiture.
2.2. "Acquiring Person" means, with respect to any Transaction or any acquisition described in clause (ii) of the definition of Change of Control, the surviving or acquiring person or entity in connection with such Transaction or acquisition, as the case may be, provided that if such surviving or acquiring person or entity is controlled, directly or indirectly, by any other person or entity (an "Ultimate Parent Entity") that is not itself controlled by any entity or person that is not a natural person, the term "Acquiring Person" shall mean such Ultimate Parent Entity.
2.3. "Affiliate" means, with respect to any person or entity, any other person or entity controlling, controlled by or under common control with the first person or entity.
2.4. "Applicable Voting Control Percentage" means (i) at any time prior to the initial public offering of the Company, a percentage greater than fifty percent (50%) and (ii) at any time from and after the initial public offering of the Company, twenty percent (20%).
2.5. "Award" means any grant or sale pursuant to the Plan of Options, Restricted Stock, Restricted Stock Units or Stock Grants.
2.6. "Award Agreement" means an agreement between the Company and the recipient of an Award, setting forth the terms and conditions of the Award.
2.7. "Beneficial Ownership" has the meaning ascribed to such term in Rule 13d-3, or any successor rule thereto, promulgated by the Securities and Exchange Commission pursuant to the Exchange Act.
2.8. "Board" means the Company's board of directors.
2.9. "Change of Control" means (i) the closing of any Sale of the Company Transaction or (ii) the direct or indirect acquisition, in a single transaction or a series of related transactions, by any person or Group (other than the Company or a Controlled Affiliate of the Company) of Beneficial Ownership of previously outstanding shares of capital stock of the Company if (A) immediately after such acquisition, such person or Group, together with their respective Affiliates, shall own or hold shares of capital stock of the Company possessing at least the Applicable Voting Control Percentage of the total voting power of the outstanding capital stock of the Company and (B) immediately prior to such acquisition, such person or Group, together with their respective Affiliates, did not own or hold shares of capital stock of the Company possessing at least the Applicable Voting Control Percentage of the total voting power of the outstanding capital stock of the Company. Notwithstanding anything expressed or implied in the foregoing provisions of this definition to the contrary, any direct or indirect acquisition referred to in clause (ii) above in this definition shall not be treated as a Change of Control if, at any time prior to or after such direct or indirect acquisition, a majority of the members of the board of directors of the Company as constituted immediately prior to such direct or indirect acquisition consent in writing to exclude such direct or indirect acquisition from the scope of this definition.
2.10. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto, and any regulations issued from time to time thereunder.
2.11. "Controlled Affiliate" means, with respect to any person or entity, any other person or entity that is controlled by such person or entity.
2.12. "Committee" means any committee of the Board delegated
responsibility by the Board for the administration of the Plan, as provided in
Section 5 of the Plan. For any period during which no such committee is in
existence, the term "Committee" shall mean the Board and all authority and
responsibility assigned the Committee under the Plan shall be exercised, if at
all, by the Board.
2.13. "Common Stock" means common stock, par value $0.01 per share, of the Company.
2.14. "Company" means Amicus Therapeutics, Inc., a corporation organized under the laws of the State of Delaware.
2.15. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.16. "Grant Date" means the date as of which an Option is granted, as determined under Section 7.1(a).
2.17. "Group" has the meaning ascribed to such term in Section 13(d)(3) of the Exchange Act or any successor section thereto.
2.18. "Incentive Option" means an Option which by its terms is to be treated as an "incentive stock option" within the meaning of Section 422 of the Code.
2.19. "Market Value" means the value of a share of Common Stock on a particular date determined by such methods or procedures as may be established by the Committee. Unless otherwise determined by the Committee, the Market Value of Common Stock as of any date is the closing price for the Common Stock as reported on the NASDAQ Global market (or on any other national securities exchange on which the Common Stock is then listed) for that date 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. For purposes of Awards granted as of the effective date of the Company's initial public offering, Market Value shall be the price at which the Company's Common Stock is offered to the public in its initial public offering.
2.20. "Nonstatutory Option" means any Option that is not an Incentive Option.
2.21. "Option" means an option granted under the Plan to purchase shares of Common Stock.
2.22. "Optionee" means an employee, consultant or director of the Company to whom an Option shall have been initially granted under the Plan.
2.23. "Participant" means any holder of an outstanding Award under the Plan.
2.24. "Plan" means this 2007 Equity Incentive Plan of the Company, as amended and in effect from time to time.
2.25. "Restricted Stock" means a grant or sale pursuant to the Plan of shares of Common Stock to a Participant subject to a Risk of Forfeiture.
2.26. "Restricted Stock Units" means rights granted pursuant to the Plan to receive shares of Common Stock at the close of a Restriction Period, subject to a Risk of Forfeiture.
2.27. "Restriction Period" means the period of time, established by the Committee in connection with an Award of Restricted Stock or Restricted Stock Units, during which the shares of Restricted Stock or Restricted Stock Units are subject to a Risk of Forfeiture described in the applicable Award Agreement.
2.28 "Risk of Forfeiture" means a limitation on the right of a Participant to retain an Award of Restricted Stock or Restricted Stock Units, including a right in the Company to reacquire such Restricted Stock at less than its then Market Value and/or the forfeiture of Restricted Stock Units held by a Participant, arising because of the occurrence or non-occurrence of specified events or conditions.
2.29 "Sale of the Company Transaction" means any Transaction in which the stockholders of the Company immediately prior to such Transaction, together with any and all of such stockholders' Affiliates, do not own or hold, immediately after consummation of such Transaction, shares of capital stock of the Acquiring Person in connection with such Transaction possessing at least a majority of the total voting power of the outstanding capital stock of such Acquiring Person.
2.30 "Securities Act" means the Securities Act of 1933, as amended.
2.31 "Stock Grant" means the grant pursuant to the Plan of shares of Common Stock not subject to restrictions or other forfeiture conditions.
2.27. "Ten Percent Owner" means a person who owns, or is deemed within the meaning of Section 422(b)(6) of the Code to own, stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (or any parent or subsidiary corporations of the Company, as defined in Section 424(e) and (f), respectively, of the Code). Whether a person is a Ten Percent Owner shall be determined with respect to each Option based on the facts existing immediately prior to the Grant Date of such Option.
2.28. "Transaction" means any merger or consolidation of the Company with or into another person or entity or the sale or transfer of all or substantially all of the assets of the Company, in each case in a single transaction or in a series of related transactions.
3. TERM OF THE PLAN
Unless the Plan shall have been earlier terminated by the Board, Awards may be granted under this Plan at any time in the period commencing on the effective date of approval of the Plan by the Board and ending immediately prior to the tenth anniversary of the earlier of the adoption of the Plan by the Board or approval of the Plan by the Company's stockholders. Awards granted pursuant to the Plan within such period shall not expire solely by reason of the termination of the Plan. Awards of Incentive Options granted prior to stockholder approval of the Plan are hereby expressly conditioned upon such approval, but in the event of the failure of the stockholders to approve the Plan shall thereafter and for all purposes be deemed to constitute Nonstatutory Options.
4. STOCK SUBJECT TO THE PLAN
Subject to the provisions of Section 8 of the Plan, at no time shall the number of shares of Common Stock issued pursuant to or subject to outstanding Awards granted under the Plan (including, without limitation, pursuant to Incentive Options), nor the number of shares of Common Stock issued pursuant to Incentive Options, exceed the sum of (a) Nine Hundred Sixty Six Thousand Six Hundred Sixty Seven (966,667) shares of Common Stock plus (b) an annual increase to be added, automatically and without further action on January 1 of each year equal to the lesser of (i) Twenty Six Thousand Six Hundred Sixty Seven (26,667) shares of common stock and (ii) one percent (1.0%) of the Company's outstanding equity on a fully diluted basis, calculated by treating all outstanding warrants, stock options and convertible securities of the Company, whether or not then vested or exercisable, as if they had been exercised for or converted into the full number of shares of capital stock of the Company subject to such outstanding warrants, stock options and convertible securities), on the December 31 that immediately precedes such January 1; provided, however, that the Board may, at any time and on any one or more occasions, take action to waive the annual increase set forth in clause (b), in whole or in part. For purposes of applying the foregoing limitation, (x) if any Option expires, terminates, or is cancelled for any reason without having been exercised in full, or if any Award of Restricted Stock is forfeited, the shares not purchased by the Participant or forfeited by the Participant shall again be available for Awards thereafter to be granted under the Plan, and (y) if any Option is exercised by delivering previously
owned shares in payment of the exercise price therefor, only the net number of shares, that is, the number of shares issued minus the number received by the Company in payment of the exercise price, shall be considered to have been issued pursuant to an Award granted under the Plan. Shares of Common Stock issued pursuant to the Plan may be either authorized but unissued shares or shares held by the Company in its treasury.
5. ADMINISTRATION
The Plan shall be administered by the Committee; provided, however,
that at any time and on any one or more occasions the Board may itself exercise
any of the powers and responsibilities assigned the Committee under the Plan and
when so acting shall have the benefit of all of the provisions of the Plan
pertaining to the Committee's exercise of its authorities hereunder; and
provided further that the Committee may delegate to an executive officer or
officers the authority to grant Awards hereunder to employees who are not
officers, and to consultants, in accordance with such guidelines as the
Committee shall set forth at any time or from time to time. Subject to the
provisions of the Plan, the Committee shall have complete authority, in its
discretion, to make or to select the manner of making all determinations with
respect to each Award to be granted by the Company under the Plan in addition to
any other determination allowed the Committee under the Plan including, without
limitation: (a) the employee, consultant or director to receive the Award; (b)
the form of Award; (c) whether an Option (if granted to an employee) will be an
Incentive Option or a Nonstatutory Option; (d) the time of granting an Award;
(e) the number of shares subject to an Award; (f) the exercise price of an
Option or purchase price, if any, for shares of Restricted Stock or for a Stock
Grant and the method of payment of such exercise price or such purchase price;
(g) the term of an Option; (h) the vesting period of shares of Restricted Stock
or of Restricted Stock Units and any acceleration thereof; (i) the exercise date
or dates of an Option and any acceleration thereof; and (j) the effect of
termination of any employment, consulting or Board member relationship with the
Company or any of its Affiliates on the subsequent exercisability of an Option
or on the Risk of Forfeiture of Restricted Stock or Restricted Stock Units. In
making such determinations, the Committee may take into account the nature of
the services rendered by the respective employees, consultants and directors,
their present and potential contributions to the success of the Company and its
Affiliates, and such other factors as the Committee in its discretion shall deem
relevant. Subject to the provisions of the Plan, the Committee shall also have
complete authority to interpret the Plan, to prescribe, amend and rescind rules
and regulations relating to it, to determine the terms and provisions of the
respective Award Agreements (which need not be identical), and to make all other
determinations necessary or advisable for the administration of the Plan. The
Committee's determinations made in good faith on matters referred to in this
Plan shall be final, binding and conclusive on all persons having or claiming
any interest under the Plan or an Award made pursuant hereto.
6. AUTHORIZATION AND ELIGIBILITY
The Committee may grant from time to time and at any time prior to the termination of the Plan one or more Awards, either alone or in combination with any other Awards, to any employee of or consultant to one or more of the Company and its Affiliates or to any non-employee member of the Board or of any board of directors (or similar governing authority) of any Affiliate. However, only employees of the Company or of any parent or subsidiary corporations of the Company, as defined in Sections 424(e) and (f), respectively, of the Code, shall be eligible for the grant of an Incentive Option. Further, in no event shall the number of shares of Common Stock covered by Options or other Awards granted to any one person in any
one calendar year (or portion of a year) ending after such date exceed fifty percent (50%) of the aggregate number of shares of Common Stock subject to the Plan.
Each grant of an Award shall be subject to all applicable terms and conditions of the Plan (including but not limited to any specific terms and conditions applicable to that type of Award set out in the following Section), and such other terms and conditions, not inconsistent with the terms of the Plan, as the Committee may prescribe. No prospective Participant shall have any rights with respect to an Award, unless and until such Participant has executed an agreement evidencing the Award, delivered a fully executed copy thereof to the Company, and otherwise complied with the applicable terms and conditions of such Award.
7. SPECIFIC TERMS OF AWARDS
7.1. Options.
(a) Date of Grant. The granting of an Option shall take place at the time specified in the Award Agreement. Only if expressly so provided in the applicable Award Agreement shall the Grant Date be the date on which the Award Agreement shall have been duly executed and delivered by the Company and the Optionee.
(b) Exercise Price. The price at which shares of Common Stock may be acquired under each Incentive Option shall be not less than 100% of the Market Value of Common Stock on the Grant Date, or not less than 110% of the Market Value of Common Stock on the Grant Date if the Optionee is a Ten Percent Owner. The price at which shares may be acquired under each Nonstatutory Option shall not be so limited solely by reason of this Section.
(c) Option Period. No Incentive Option may be exercised on or after the tenth anniversary of the Grant Date, or on or after the fifth anniversary of the Grant Date if the Optionee is a Ten Percent Owner. The Option period under each Nonstatutory Option shall not be so limited solely by reason of this Section.
(d) Exercisability. An Option may be immediately exercisable or become exercisable in such installments, cumulative or non-cumulative, as the Committee may determine. In the case of an Option not otherwise immediately exercisable in full, the Committee may Accelerate such Option in whole or in part at any time; provided, however, that in the case of an Incentive Option, any such Acceleration of such Incentive Option would not cause such Incentive Option to fail to comply with the provisions of Section 422 of the Code or the Optionee consents to such Acceleration.
(e) Effect of Termination of Employment, Consulting or Board Member Relationship. Unless the Committee shall provide otherwise with respect to any Option, if the applicable Optionee's association with the Company or any of its Affiliates as an employee, director or consultant ends for any reason or no reason, regardless of whether the end of such association is effected by the Company, any such Affiliate or such Optionee (whether voluntarily or involuntarily, including because an entity with which such Optionee has any such association ceases to be an Affiliate of the Company), and immediately following the end of any such association, such Optionee is not associated with the Company or any of its Affiliates as an employee, director or consultant, or if such Optionee dies, then any outstanding Option initially granted to such Optionee, whether then held by such Optionee or any other Participant, shall cease to be exercisable in any respect not later than ninety (90) days following the end of such
association or such death and, for the period it remains exercisable following
the end of such association or such death, shall be exercisable only to the
extent exercisable on the date of the end of such association or such death.
Military or sick leave or other bona fide leave shall not be deemed a
termination of employment, provided that it does not exceed the longer of ninety
(90) days or the period during which the absent Optionee's reemployment rights,
if any, are guaranteed by statute or by contract.
(f) Transferability. Except as otherwise provided in this subsection (f), Options shall not be transferable, and no Option or interest therein may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated, other than by will or by the laws of descent and distribution (subject always to the provisions of subsection (e) above). Except as otherwise provided in this subsection (f), all of a Participant's rights in any Option may be exercised during the life of such Participant only by such Participant or such Participant's legal representative. However, the applicable Award Agreement or the Committee (at or after the grant of a Nonstatutory Option) may provide that a Nonstatutory Option may be transferred by the applicable Participant to a family member; provided, however, that any such transfer is without payment of any consideration whatsoever and that no transfer of a Nonstatutory Option shall be valid unless first approved by the Committee, acting in its sole discretion, unless such transfer is permitted under the applicable Award Agreement. For this purpose, "family member" means any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the applicable Participant's household (other than a tenant or employee), a trust in which the foregoing persons and/or the applicable Participant have more than fifty percent (50%) of the beneficial interests, a foundation in which the foregoing persons and/or the applicable Participant control the management of assets, and any other entity in which these persons and/or the applicable Participant own more than fifty percent (50%) of the voting interests. The Committee may at any time or from time to time delegate to one or more officers of the Company the authority to permit transfers of Nonstatutory Options to third parties pursuant to this subsection (f), which authorization shall be exercised by such officer or officers in accordance with guidelines established by the Committee at any time and from time to time. The restrictions on transferability set forth in this subsection (f) shall in no way preclude any Participant from effecting "cashless" exercises of an Option pursuant to the terms of the Plan.
(g) Method of Exercise. An Option may be exercised by a Participant giving written notice, in the manner provided in Section 15, specifying the number of shares of Common Stock with respect to which the Option is then being exercised. The notice shall be accompanied by payment in the form of cash or check payable to the order of the Company in an amount equal to the exercise price of the shares of Common Stock to be purchased or, subject in each instance to the Committee's approval, acting in its sole discretion and subject to such conditions, if any, as the Committee may deem necessary to comply with applicable laws, rules and regulations or to avoid adverse accounting effects to the Company, by delivery to the Company of (i) shares of Common Stock having a Market Value equal to the exercise price of the shares to be purchased, or (ii) the Participant's executed promissory note in the principal amount equal to the exercise price of the shares to be purchased and otherwise in such form as the Committee shall have approved. If the Common Stock is traded on an established market, payment of any exercise price may also be made through and under the terms and conditions of any formal cashless exercise program authorized by the Company entailing the sale of the Common Stock subject to any Option in a brokered transaction (other than to the Company). Receipt by the Company of such notice and payment in any authorized or combination of authorized means shall constitute the exercise of the Option. Within thirty (30) days thereafter but subject to the remaining
provisions of the Plan, the Company shall deliver or cause to be delivered to the Participant or his agent a certificate or certificates for the number of shares then being purchased. Such shares shall be fully paid and nonassessable. Notwithstanding any of the foregoing provisions in this subsection (g) to the contrary, (A) no Option shall be considered to have been exercised unless and until all of the provisions governing such exercise specified in the Plan and in the relevant Award Agreement shall have been duly complied with; and (B) the obligation of the Company to issue any shares upon exercise of an Option is subject to the provisions of Section 9.1 hereof and to compliance by the Optionee and the Participant with all of the provisions of the Plan and the relevant Award Agreement.
(h) Limit on Incentive Option Characterization. An Incentive Option shall be considered to be an Incentive Option only to the extent that the number of shares of Common Stock for which the Option first becomes exercisable in a calendar year do not have an aggregate Market Value (as of the date of the grant of the Option) in excess of the "current limit". The current limit for any Optionee for any calendar year shall be $100,000 minus the aggregate Market Value at the date of grant of the number of shares of Common Stock available for purchase for the first time in the same year under each other Incentive Option previously granted to the Optionee under the Plan, and under each other incentive stock option previously granted to the Optionee under any other incentive stock option plan of the Company and its Affiliates, after December 31, 1986. Any shares of Common Stock which would cause the foregoing limit to be violated shall be deemed to have been granted under a separate Nonstatutory Option, otherwise identical in its terms to those of the Incentive Option.
(i) Notification of Disposition. Each person exercising any Incentive Option granted under the Plan shall be deemed to have covenanted with the Company to report to the Company any disposition of such shares prior to the expiration of the holding periods specified by Section 422(a)(1) of the Code and, if and to the extent that the realization of income in such a disposition imposes upon the Company federal, state, local or other withholding tax requirements, or any such withholding is required to secure for the Company an otherwise available tax deduction, to remit to the Company an amount in cash sufficient to satisfy those requirements.
(j) Rights Pending Exercise. No person holding an Option shall be deemed for any purpose to be a stockholder of the Company with respect to any of the shares of Common Stock issuable pursuant to such Option, except to the extent that such Option shall have been exercised with respect thereto and, in addition, a certificate shall have been issued therefor and delivered to such person or his agent.
7.2. Restricted Stock.
(a) Purchase Price. Shares of Restricted Stock shall be issued under the Plan for such consideration, in cash, other property or services, or any combination thereof, as is determined by the Committee.
(b) Issuance of Certificates. Subject to subsection (c) below, each Participant receiving an Award of Restricted Stock shall be issued a stock certificate in respect of such shares of Restricted Stock. Such certificate shall be registered in the name of such Participant, and, if applicable, shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Award substantially in the following form:
The transferability of this certificate and the shares represented by this certificate are subject to the terms and conditions of the Amicus Therapeutics, Inc. 2007 Equity Incentive Plan and an Award Agreement entered into by the registered owner and Amicus Therapeutics, Inc. Copies of such Plan and Agreement are on file in the offices of Amicus Therapeutics, Inc.
(c) Escrow of Shares. The Committee may require that the stock certificates evidencing shares of Restricted Stock be held in custody by a designated escrow agent (which may but need not be the Company) until the restrictions thereon shall have lapsed, and that the Participant deliver a stock power, endorsed in blank, relating to the Common Stock covered by such Award.
(d) Restrictions and Restriction Period. During the Restriction Period applicable to shares of Restricted Stock, such shares shall be subject to limitations on transferability and a Risk of Forfeiture arising on the basis of such conditions related to the performance of services, Company or Affiliate performance or otherwise as the Committee may determine and provide for in the applicable Award Agreement. Any such Risk of Forfeiture may be waived or terminated, or the Restriction Period shortened, at any time by the Committee on such basis as it deems appropriate.
(e) Rights Pending Lapse of Risk of Forfeiture or Forfeiture of Award. Except as otherwise provided in the Plan or the applicable Award Agreement, at all times prior to lapse of any Risk of Forfeiture applicable to, or forfeiture of, an Award of Restricted Stock, the Participant shall have all of the rights of a stockholder of the Company, including the right to vote the shares of Restricted Stock.
(f) Effect of Termination of Employment, Consulting or Board Member Relationship. Unless otherwise determined by the Committee at or after grant and subject to the applicable provisions of the Award Agreement, if the applicable original grantee's association with the Company or any of its Affiliates as an employee, director or consultant ends for any reason or no reason during the Restriction Period, regardless of whether the end of such association is effected by the Company, any such Affiliate or such original grantee (whether voluntarily or involuntarily, including because an entity with which such original grantee has any such association ceases to be an Affiliate of the Company), and immediately following the end of any such association, such original grantee is not associated with the Company or any of its Affiliates as an employee, director or consultant, or if such original grantee dies, then all outstanding shares of Restricted Stock initially granted to such original grantee that are still subject to Risk of Forfeiture, whether then held by such original grantee or any other Participant, shall be forfeited or otherwise subject to return to or repurchase by the Company if and to the extent so provided by, and subject to and in accordance with, the terms of the applicable Award Agreement; provided, however, that military or sick leave or other bona fide leave shall not be deemed a termination of employment, if it does not exceed the longer of ninety (90) days or the period during which the absent original grantee's reemployment rights, if any, are guaranteed by statute or by contract.
(g) Lapse of Restrictions. If and when the Restriction Period expires without a prior forfeiture of the Restricted Stock, the certificates for such shares shall be delivered to the Participant promptly if not theretofore so delivered.
(h) Transferability. Except as otherwise provided in this
subsection (h), shares of Restricted Stock shall not be transferable, and no
share of Restricted Stock or interest therein may be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated, other than by will or by the
laws of descent and distribution (subject always to the provisions of subsection
(f) above). The applicable Award Agreement or the Committee (at or after the
grant of a share of Restricted Stock) may provide that such share of Restricted
Stock may be transferred by the applicable Participant to a family member;
provided, however, that any such transfer is without payment of any
consideration whatsoever and that no transfer of a share of Restricted Stock
shall be valid unless first approved by the Committee, acting in its sole
discretion, unless such transfer is permitted under the applicable Award
Agreement. For this purpose, "family member" means any child, stepchild,
grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or
sister-in-law, including adoptive relationships, any person sharing the
applicable Participant's household (other than a tenant or employee), a trust in
which the foregoing persons and/or the applicable Participant have more than
fifty percent (50%) of the beneficial interests, a foundation in which the
foregoing persons and/or the applicable Participant control the management of
assets, and any other entity in which these persons and/or the applicable
Participant own more than fifty percent (50%) of the voting interests. The
Committee may at any time or from time to time delegate to one or more officers
of the Company the authority to permit transfers of shares of Restricted Stock
to third parties pursuant to this subsection (h), which authorization shall be
exercised by such officer or officers in accordance with guidelines established
by the Committee at any time and from time to time.
7.3. Restricted Stock Units.
(a) Character. Each Restricted Stock Unit shall entitle the recipient to a share of Common Stock at a close of such Restriction Period as the Committee may establish and subject to a Risk of Forfeiture arising on the basis of such conditions relating to the performance of services, Company or Affiliate performance or otherwise as the Committee may determine and provide for in the applicable Award Agreement. Any such Risk of Forfeiture may be waived or terminated, or the Restriction Period shortened, at any time by the Committee on such basis as it deems appropriate.
(b) Issuance of Certificates. Unless otherwise determined by the Committee at or after grant and subject to the applicable provisions of the Award Agreement, at the close of the Restriction Period applicable to any Restricted Stock Units (including, without limitation, the close of the applicable Restriction Period as a result of (i) any Acceleration of Restricted Stock Units in accordance with the terms of this Plan or any applicable Award Agreement, (ii) any waiver, lapse or termination of the Risk of Forfeiture applicable to Restricted Stock Units in accordance with the terms of this Plan or any applicable Award Agreement or (iii) any shortening of the Restriction Period applicable to any Restricted Stock Units in accordance with the terms of this Plan or any applicable Award Agreement), the Company shall deliver or cause to be delivered to the Participant that is the holder of such Restricted Stock Units a stock certificate in respect of the shares of Common Stock subject to such Restricted Stock Units. Such certificate shall be registered in the name of such Participant, and, if applicable, shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such shares of Common Stock substantially in the following form:
The transferability of this certificate and the shares represented by this certificate are subject to the terms and conditions of the
Amicus Therapeutics, Inc. 2007 Equity Incentive Plan and an Award Agreement entered into by the registered owner and Amicus Therapeutics, Inc. Copies of such Plan and Agreement are on file in the offices of Amicus Therapeutics, Inc.
(c) Dividends. At the discretion of the Committee, Participants may be entitled to receive payments equivalent to any dividends declared with respect to Common Stock referenced in grants of Restricted Stock Units but only following the close of the applicable Restriction Period and then only if the underlying Common Stock shall have been earned. Unless the Committee shall provide otherwise, any such dividend equivalents shall be paid, if at all, without interest or other earnings.
(d) Effect of Termination of Employment, Consulting or Board Member Relationship. Unless otherwise determined by the Committee at or after grant and subject to the applicable provisions of the Award Agreement, if the applicable original grantee's association with the Company or any of its Affiliates as an employee, director or consultant ends for any reason or no reason during the Restriction Period, regardless of whether the end of such association is effected by the Company, any such Affiliate or such original grantee (whether voluntarily or involuntarily, including because an entity with which such original grantee has any such association ceases to be an Affiliate of the Company), and immediately following the end of any such association, such original grantee is not associated with the Company or any of its Affiliates as an employee, director or consultant, or if such original grantee dies, then all outstanding Restricted Stock Units initially granted to such original grantee that are still subject to Risk of Forfeiture, whether then held by such original grantee or any other Participant, shall be forfeited or otherwise subject to return to the Company in accordance with the terms of the applicable Award Agreement; provided, however, that military or sick leave or other bona fide leave shall not be deemed a termination of employment, if it does not exceed the longer of ninety (90) days or the period during which the absent original grantee's reemployment rights, if any, are guaranteed by statute or by contract.
(e) Transferability. Except as otherwise provided in this subsection (e), Restricted Stock Units shall not be transferable, and no Restricted Stock Unit or interest therein may be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated. The applicable Award Agreement or the Committee (at or after the grant of a Restricted Stock Unit) may provide that such Restricted Stock Unit may be transferred by the applicable Participant to a family member; provided, however, that any such transfer is without payment of any consideration whatsoever and that no transfer of a Restricted Stock Unit shall be valid unless first approved by the Committee, acting in its sole discretion, unless such transfer is permitted under the applicable Award Agreement. For this purpose, "family member" means any child, stepchild, grandchild, parent, stepparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the applicable Participant's household (other than a tenant or employee), a trust in which the foregoing persons and/or the applicable Participant have more than fifty percent (50%) of the beneficial interests, a foundation in which the foregoing persons and/or the applicable Participant control the management of assets, and any other entity in which these persons and/or the applicable Participant own more than fifty percent (50%) of the voting interests. The Committee may at any time or from time to time delegate to one or more officers of the Company the authority to permit transfers of Restricted Stock Units to third parties pursuant to this subsection (e), which authorization shall be exercised by such officer or officers in accordance with guidelines established by the Committee at any time and from time to time.
(f) Rights Pending Close of Applicable Restriction Period. No person holding Restricted Stock Units shall be deemed for any purpose to be a stockholder of the Company with respect to any of the shares of Common Stock subject to such Restricted Stock Units, except to the extent that the Restricted Period with respect to such Restricted Stock Units shall have closed and, in addition, a certificate shall have been issued for such shares of Common Stock and delivered to such person or his agent. Shares of Common Stock subject to Restricted Stock Units shall be issued and outstanding only if and to the extent that a stock certificate representing such shares has been issued and delivered in accordance with the provisions of this Section 7.3.
7.4. Stock Grants.
(a) In General. Stock Grants shall be issued for such consideration, in cash, other property or services, or any combination thereof, as is determined by the Committee. Without limiting the generality of the foregoing, Stock Grants may be awarded in such circumstances as the Committee deems appropriate, including without limitation in recognition of significant contributions to the success of the Company or its Affiliates or in lieu of compensation otherwise already due. Stock Grants shall be made without forfeiture conditions of any kind.
(b) Issuance of Certificates. Each Participant receiving a Stock Grant shall be issued a stock certificate in respect of such Stock Grant. Such certificate shall be registered in the name of such Participant, and, if applicable, shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Award substantially in the following form:
The transferability of this certificate and the shares represented by this certificate are subject to the terms and conditions of the Amicus Therapeutics, Inc. 2007 Equity Incentive Plan. A copy of such Plan is on file in the offices of Amicus Therapeutics, Inc.
7.5. Awards to Participants Outside the United States. The Committee
may modify the terms of any Award under the Plan granted to a Participant who
is, at the time of grant or during the term of the Award, resident or primarily
employed outside of the United States in any manner deemed by the Committee to
be necessary or appropriate in order that such Award shall conform to laws,
regulations, and customs of the country in which the Participant is then
resident or primarily employed, or so that the value and other benefits of the
Award to the Participant, as affected by foreign tax laws and other restrictions
applicable as a result of the Participant's residence or employment abroad,
shall be comparable to the value of such an Award to a Participant who is
resident or primarily employed in the United States. An Award may be modified
under this Section 7.4 in a manner that is inconsistent with the express terms
of the Plan, so long as such modifications will not contravene any applicable
law or regulation. The Committee may establish supplements to, or amendments,
restatements, or alternative versions of the Plan for the purpose of granting
and administrating any such modified Award. No such modification, supplement,
amendment, restatement or alternative version may increase the share limit of
Section 4.
8. ADJUSTMENT PROVISIONS
8.1. Adjustment for Corporate Actions. All of the share numbers set forth in the Plan reflect the capital structure of the Company immediately after the closing of the initial public offering of the Company's Common Stock. Subject to the provisions of Section 8.2, if subsequent to such closing the outstanding shares of Common Stock (or any other securities covered by the Plan by reason of the prior application of this Section) are
increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of Common Stock or other securities, through merger, consolidation, sale of all or substantially all the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other distribution with respect to such shares of Common Stock, or other securities, an appropriate and proportionate adjustment will be made in (i) the maximum numbers and kinds of shares provided in Section 4, (ii) the numbers and kinds of shares or other securities subject to the then outstanding Awards, (iii) the exercise price for each share or other unit of any other securities subject to then outstanding Options (without change in the aggregate purchase price as to which such Options remain exercisable), and (iv) the repurchase price of each share of Restricted Stock then subject to a Risk of Forfeiture in the form of a Company repurchase right.
8.2. Change of Control. Subject to the applicable provisions of the Award Agreement, in the event of a Change of Control, the Committee shall have the discretion, exercisable in advance of, at the time of, or (except to the extent otherwise provided below) at any time after, the Change of Control, to provide for any or all of the following (subject to and upon such terms as the Committee may deem appropriate): (A) the Acceleration, in whole or in part, of any or all outstanding Options (including Options that are assumed or replaced pursuant to clause (D) below) that are not exercisable in full at the time the Change of Control, such Acceleration to become effective at the time of the Change of Control, or at such time following the Change of Control that the employment, consulting or Board member relationship of the applicable Optionee or Optionees with the Company and its Affiliates terminates, or at such other time or times as the Committee shall determine; (B) the lapse or termination of the Risk of Forfeiture (including, without limitation, any or all of the Company's repurchase rights) with respect to outstanding Awards of Restricted Stock, such lapse or termination to become effective at the time of the Change of Control, or at such time following the Change of Control that the employment, consulting or Board member relationship with the Company and its Affiliates of the Participant or Participants that hold such Awards of Restricted Stock (or the person to whom such Awards of Restricted Stock were initially granted) terminates, or at such other time or times as the Committee shall determine; (C) the lapse or termination of the Risk of Forfeiture with respect to any or all outstanding Awards of Restricted Stock Units (including Restricted Stock Units that are assumed or replaced pursuant to clause (D) below), such lapse or termination to become effective at the time of the Change of Control, or at such time following the Change of Control that the employment, consulting or Board member relationship with the Company and its Affiliates of the Participant or Participants that hold such Awards of Restricted Stock Units (or the person to whom such Awards of Restricted Stock Units were initially granted) terminates, or at such other time or times as the Committee shall determine; (D) the assumption of outstanding Options or Restricted Stock Units, or the substitution of outstanding Options or Restricted Stock Units with equivalent options or equivalent restricted stock units, as the case may be, by the acquiring or succeeding corporation or entity (or an affiliate thereof); (E) the termination of all Options (other than Options that are assumed or substituted pursuant to clause (D) above) that remain outstanding at the time of the consummation of the Change of Control, provided that, the Committee shall have made the determination to effect such termination prior to the consummation of the Change of Control and the Committee shall have given, or caused to be given, to all Participants written notice of such potential termination at least five business days prior to the consummation of the Change of Control, and provided, further, that, if the Committee shall have determined in its sole and absolute discretion that the Corporation make payment or provide consideration to the holders of such terminated Options on account of such termination, which payment or consideration shall be on such terms and conditions as the Committee shall
have determined (and which could consist of, in the Committee's sole and absolute discretion, payment to the applicable Optionee or Optionees of an amount of cash equal to the difference between the Market Value of the shares of Common Stock for which the Option is then exercisable and the aggregate exercise price for such shares under the Option), then the Corporation shall be required to make, or cause to be made, such payment or provide, or cause to be provided, such consideration in accordance with the terms and conditions so determined by the Committee, otherwise the Corporation shall not be required to make any payment or provide any consideration in connection with, or as a result of, the termination of Options pursuant to the foregoing provisions of this clause (E); or (F) the termination of all Restricted Stock Units (other than Restricted Stock Units that are assumed or substituted pursuant to clause (D) above) that remain outstanding at the time of the consummation of the Change of Control, provided that, if the Committee shall have determined in its sole and absolute discretion that the Corporation make payment or provide consideration to the holders of such terminated Restricted Stock Units on account of such termination, which payment or consideration shall be on such terms and conditions as the Committee shall have determined (and which could consist of, in the Committee's sole and absolute discretion, payment to the applicable Participant or Participants of an amount of cash equal to the Market Value of the shares of Common Stock subject to the terminated Restricted Stock Units), then the Corporation shall be required to make such payment or provide such consideration in accordance with the terms and conditions so determined by the Committee, otherwise the Corporation shall not be required to make any payment or provide any consideration in connection with, or as a result of, the termination of Restricted Stock Units pursuant to the foregoing provisions of this clause (F). The provisions of this Section 8.2 shall not be construed as to limit or restrict in any way the Committee's general authority under Sections 7.1(d) or 7.2(d) hereof to Accelerate Options in whole or in part at any time or to waive or terminate at any time any Risk of Forfeiture applicable to shares of Restricted Stock or Restricted Stock Units. Each outstanding Option or Restricted Stock Unit that is assumed in connection with a Change of Control, or is otherwise to continue in effect subsequent to a Change of Control, will be appropriately adjusted, immediately after the Change of Control, as to the number and class of securities and the price at which it may be exercised in accordance with Section 8.1.
8.3. Dissolution or Liquidation. Upon dissolution or liquidation of the Company, each outstanding Option shall terminate, but the Optionee (if at the time he or she has an employment, consulting or Board member relationship with the Company or any of its Affiliates) shall have the right, immediately prior to such dissolution or liquidation, to exercise the Option to the extent exercisable on the date of such dissolution or liquidation.
8.4. Related Matters. Any adjustment in Awards made pursuant to this
Section 8 shall be determined and made, if at all, by the Committee and shall
include any correlative modification of terms, including of Option exercise
prices, rates of vesting or exercisability, Risks of Forfeiture and applicable
repurchase prices for Restricted Stock, which the Committee may deem necessary
or appropriate so as to ensure that the rights of the Participants in their
respective Awards are not substantially diminished nor enlarged as a result of
the adjustment and corporate action other than as expressly contemplated in this
Section 8. No fraction of a share shall be purchasable or deliverable upon
exercise, but in the event any adjustment hereunder of the number of shares
covered by an Award shall cause such number to include a fraction of a share,
such number of shares shall be adjusted to the nearest smaller whole number of
shares. No adjustment of an Option exercise price per share pursuant to this
Section 8 shall result in an exercise price which is less than the par value of
the Common Stock.
9. SETTLEMENT OF AWARDS
9.1. 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.
9.2. 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.
9.3. 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 Participant 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 Participant 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.
9.4. 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.
9.5. Lock-Up. Without the prior written consent of the Company or the managing underwriter in any public offering of shares of Common Stock, no Participant 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 Participant 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 Participant. 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 Participant (regardless of whether or not such Participant 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 Participant 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.
9.6. 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 Participant, 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.
9.7. 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 Participants may elect, subject to the 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. Participants may only elect to have shares of their Common Stock withheld having a Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction. All elections shall be irrevocable, made in writing, signed by the Participant, and shall be subject to any restrictions or limitations that the Committee deems appropriate.
10. RESERVATION OF STOCK
The Company shall at all times during the term of the Plan and any outstanding Options granted hereunder reserve or otherwise keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of the Plan (if then in effect) and such Options and shall pay all fees and expenses necessarily incurred by the Company in connection therewith.
11. NO SPECIAL SERVICE RIGHTS
Nothing contained in the Plan or in any Award Agreement shall confer upon any recipient of an Award any right with respect to the continuation of his or her employment, consulting or Board member relationship or other association with the Company (or any Affiliate), or interfere in any way with the right of the Company (or any Affiliate), subject to the terms of any separate employment, consulting or Board member agreement or provision of law or corporate articles or by-laws to the contrary, at any time to terminate such employment, consulting or Board member agreement or to increase or decrease, or otherwise adjust, the other terms and conditions of the recipient's employment, consulting or Board member relationship or other association with the Company and its Affiliates.
12. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of the Company shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including without limitation, the granting of stock options, restricted stock and restricted stock units other than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
13. TERMINATION AND AMENDMENT OF THE PLAN
The Board may at any time terminate the Plan or make such amendments or modifications of the Plan as it shall deem advisable. In the event of the termination of the Plan, the terms of the Plan shall survive any such termination with respect to any Award that is outstanding on the date of such termination, unless the holder of such Award agrees in writing to terminate such Award or to terminate all or any of the provisions of the Plan that apply to such
Award. Unless the Board otherwise expressly provides, any amendment or modification of the Plan shall affect the terms of any Award outstanding on the date of such amendment or modification as well as the terms of any Award made from and after the date of such amendment or modification; provided, however, that, except to the extent otherwise provided in the last sentence of this paragraph, (i) no amendment or modification of the Plan shall apply to any Award that is outstanding on the date of such amendment or modification if such amendment or modification would reduce the number of shares subject to such Award, increase the purchase price applicable to shares subject to such Award or materially adversely affect the provisions applicable to such Award that relate to the vesting or exercisability of such Award or of the shares subject to such Award, (ii) no amendment or modification of the Plan shall apply to any Incentive Option that is outstanding on the date of such amendment or modification if such amendment or modification would result in such Incentive Option no longer being treated as an "incentive stock option" within the meaning of Section 422 of the Code and (iii) no amendment or modification of the Plan shall apply to any Award that is outstanding on the date of such amendment or modification unless such amendment or modification of the Plan shall also apply to all other Awards outstanding on the date of such amendment or modification. In the event of any amendment or modification of the Plan that is described in clause (i), (ii) or (iii) of the foregoing proviso, such amendment or modification of the Plan shall apply to any Award outstanding on the date of such amendment or modification only if the recipient of such Award consents in writing thereto.
The Committee may amend or modify, prospectively or retroactively, the terms of any outstanding Award without amending or modifying the terms of the Plan itself, provided that as amended or modified such Award is consistent with the terms of the Plan as in effect at the time of the amendment or modification of such Award, but no such amendment or modification of such Award shall, without the written consent of the recipient of such Award, reduce the number of shares subject to such Award, increase the purchase price applicable to shares subject to such Award, adversely affect the provisions applicable to such Award that relate to the vesting or exercisability of such Award or of the shares subject to such Award, or otherwise materially adversely affect the terms of such Award (except for amendments or modifications to the terms of such Award or of the stock subject to such Award that are expressly permitted by the terms of the Plan or that result from any amendment or modification of the Plan in accordance with the provisions of the first paragraph of this Section 13), or, if such Award is an Incentive Option, result in such Incentive Option no longer being treated as an "incentive stock option" within the meaning of Section 422 of the Code. Notwithstanding any of the foregoing provisions of this paragraph to the contrary, the Committee is expressly authorized to amend any or all outstanding Options to effect a repricing thereof by lowering the purchase price applicable to the shares of Common Stock subject to such Option or Options without the approval of the stockholders of the Company or the holder or holders of such Option or Options, and, in connection with such repricing, to amend or modify any of the other terms of the Option or Options so repriced, including, without limitation, for purposes of reducing the number of shares subject to such Option or Options or for purposes of adversely affecting the provisions applicable to such Option or Options that relate to the vesting or exercisability thereof, in each case without the approval of stockholders of the Company or the holder or holders of such Option or Options.
In addition, notwithstanding anything express or implied in any of the foregoing provisions of this Section 13 to the contrary, the Committee may amend or modify, prospectively or retroactively, the terms of any outstanding Award to the extent the Committee reasonably determines necessary or appropriate to conform such Award to the requirements of Section 409A of the Code (concerning non-qualified deferred compensation), if applicable.
14. INTERPRETATION OF THE PLAN
In the event of any conflict between the provisions of this Plan and the provisions of any applicable Award Agreement, the provisions of this Plan shall control, except if and to the extent that the conflicting provision in such Award Agreement was authorized and approved by the Committee at the time of the grant of the Award evidenced by such Award Agreement or is ratified by the Committee at any time subsequent to the grant of such Award, in which case the conflicting provision in such Award Agreement shall control. Without limiting the generality of the foregoing provisions of this Section 14, insofar as possible the provisions of the Plan and such Award Agreement shall be construed so as to give full force and effect to all such provisions. In the event of any conflict between the provisions of this Plan and the provisions of any other agreement between the Company and the Optionee and/or Participant, the provisions of such agreement shall control except as required to fulfill the intention that this Plan constitute an incentive stock option plan within the meaning of Section 422 of the Code, but insofar as possible the provisions of the Plan and any such agreement shall be construed so as to give full force and effect to all such provisions.
15. NOTICES AND OTHER COMMUNICATIONS
Any notice, demand, request or other communication hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or duly sent by first class registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the recipient of an Award, at his or her residence address last filed with the Company and (ii) if to the Company, at its principal place of business, addressed to the attention of its Chief Executive Officer, or to such other address or telecopier number, as the case may be, as the addressee may have designated by notice to the addressor. All such notices, requests, demands and other communications shall be deemed to have been received: (i) in the case of personal delivery, on the date of such delivery; (ii) in the case of mailing, when received by the addressee; and (iii) in the case of facsimile transmission, when confirmed by facsimile machine report.
16. GOVERNING LAW
The Plan and all Award Agreements and actions taken thereunder shall be governed, interpreted and enforced in accordance with the laws of the State of New Jersey, without regard to the conflict of laws principles thereof.
AMICUS THERAPEUTICS, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
(Form of Non-Statutory Stock Option Agreement)
This NON-STATUTORY STOCK OPTION AGREEMENT, dated as of <date> (this "Agreement"), is between AMICUS THERAPEUTICS, INC., a Delaware corporation (the "Company"), and <Optionee Name> (the "Optionee"). Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Company's 2007 Equity Incentive Plan, a copy of which is attached hereto as Exhibit A (the "Plan").
1. Grant of Option. Pursuant to the Plan, the Company grants to the
Optionee an option (the "Option") to purchase from the Company all or any number
of an aggregate of <Number of Shares> shares, subject to adjustment pursuant to
Section 8 of the Plan (the "Option Shares"), of the Company's common stock, $.01
par value per share, at a price of $<price> per share. The Option is granted as
of <Date of Grant> (the "Grant Date").
2. Character of Option. The Option is not intended to be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option. Unless subject to earlier expiration or termination pursuant to the terms of the Plan or pursuant to Section 5 below, the Option shall expire on the ten year anniversary of the Grant Date.
4. Exercisability of Option. The Option may be exercised, at any time and from time to time until its expiration or termination, for any or all of those Option Shares in respect of which the Option shall have become exercisable, in accordance with the provisions set forth below in this Section 4 and in the manner provided for in the Plan Subject to the provisions of the Plan (including, without limitation, the provisions of Section 7.1(e) and Section 8 of the Plan), and subject to the provisions of Section 5 below, the Option shall become exercisable (i) for [______] Option Shares on [_______] (the "First Vesting Date"), (ii) for [_______] Option Shares on the first day of each of the next [_____] calendar months, beginning on the calendar month next following the First Vesting Date., and (iii) for [______] Option Shares on [_______].(1) Notwithstanding anything expressed or implied to the contrary in the foregoing provisions of this Section 4, the exercisability of the Option may, as provided in Section 7.1(d) of the Plan, at any time be Accelerated in the discretion of the Committee.
5. Effect of Termination of Employment, Consulting or Board Member Relationship. Subject to Section 7.1(e) of the Plan, if the Optionee's association with the Company as an employee, director or consultant ends, regardless of how the end of such association is effected, and immediately following the end of any such association such Optionee is not associated with the Company as an employee, director or consultant, or if such Optionee dies, then the Option shall cease to be exercisable in any respect not later than ninety (90) days
following the end of such association or such death and, for the period it remains exercisable following the end of such association or such death, shall be exercisable only to the extent exercisable on the date of the end of such association or such death (after giving effect to any Acceleration that may be applicable to the Option).
6. Transfer of Option. Other than as expressly permitted by the provisions of Section 7.1(f) of the Plan, the Option may not be transferred except by will or the laws of descent and distribution and, during the lifetime of the Optionee, may be exercised only by the Optionee.
7. Incorporation of Plan Terms. The Option is granted subject to all of
the applicable terms and provisions of the Plan, including, but not limited to,
the limitations on the Company's obligation to deliver Option Shares upon
exercise set forth in Section 9.1 (Violation of Law), Section 9.2 (Corporate
Restrictions on Rights in Stock), Section 9.3 (Investment Representations) and
Section 9.7 (Tax Withholding).
8. Miscellaneous. This Agreement shall be construed and enforced in accordance with the internal, substantive laws of the State of New Jersey, and shall be binding upon and inure to the benefit of any successor or assign of the Company and any executor, administrator, trustee, guardian, or other legal representative of the Optionee.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties have executed this Non-Statutory Stock Option Agreement as a sealed instrument as of the date first above written.
AMICUS THERAPEUTICS, INC. OPTIONEE
By: ___________________________ _____________________________ Name: Title Optionee's Address: _____________________________ _____________________________ |
Exhibit A
2007 EQUITY INCENTIVE PLAN
AMICUS THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
(Form of Incentive Stock Option Agreement - Executive)
This INCENTIVE STOCK OPTION AGREEMENT, dated as of <date> (this "Agreement"), is between AMICUS THERAPEUTICS, INC., a Delaware corporation (the "Company"), and <Executive Name> (the "Optionee"). Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Company's 2007 Equity Incentive Plan, a copy of which is attached hereto as Exhibit A (the "Plan").
1. Grant of Option. Pursuant to the Plan, the Company grants to the
Optionee an option (the "Option") to purchase from the Company all or any number
of an aggregate of <Number of Shares> shares, subject to adjustment pursuant to
Section 8 of the Plan (the "Option Shares"), of the Company's common stock, $.01
par value per share, at a price of $<price> per share. The Option is granted as
of <Date of Grant> (the "Grant Date").
2. Character of Option. The Option is intended to be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option. Unless subject to earlier expiration or termination pursuant to the terms of the Plan or pursuant to Section 5 below, the Option shall expire on the ten year anniversary of the Grant Date.
4. Exercisability of Option. The Option may be exercised, at any time and from time to time until its expiration or termination, for any or all of those Option Shares in respect of which the Option shall have become exercisable, in accordance with the provisions set forth below in this Section 4 and in the manner provided for in the Plan. Subject to the provisions of the Plan (including, without limitation, the provisions of Section 7.1(e) and Section 8 of the Plan), and subject to the provisions of Section 5 below, the Option shall become exercisable (i) for [______] Option Shares on [_______] (the "First Vesting Date"), (ii) for [_______] Option Shares on the first day of each of the next [_____] calendar months, beginning on the calendar month next following the First Vesting Date, and (iii) for [______] Option Shares on [_______].(1) Notwithstanding anything expressed or implied to the contrary in the foregoing provisions of this Section 4, the exercisability of the Option (i) may, as provided in Section 7.1(d) of the Plan, at any time be Accelerated in the discretion of the Committee, and (ii) may be subject to Acceleration if, to the extent, and under the circumstances, provided in the Optionee's [employment offer letter / employment agreement], dated [______], or in any written agreement between the Optionee and the Company.
5. Effect of Termination of Employment Relationship. Subject to Section 7.1(e) of the Plan, if the Optionee's employment with the Company ends, regardless of how the end of such employment is effected, or if such Optionee dies, then the Option shall cease to be exercisable in any respect not later than ninety (90) days following the end of such employment or such death and, for the period it remains exercisable following the end of such employment or
such death, shall be exercisable only to the extent exercisable on the date of the end of such employment or such death (after giving effect to any Acceleration that may be applicable to the Option).
6. Transfer of Option. Other than as expressly permitted by the provisions of Section 7.1(f) of the Plan, the Option may not be transferred except by will or the laws of descent and distribution and, during the lifetime of the Optionee, may be exercised only by the Optionee.
7. Incorporation of Plan Terms. The Option is granted subject to all of
the applicable terms and provisions of the Plan, including, but not limited to,
the limitations on the Company's obligation to deliver Option Shares upon
exercise set forth in Section 9.1 (Violation of Law), Section 9.2 (Corporate
Restrictions on Rights in Stock), Section 9.3 (Investment Representations) and
Section 9.7 (Tax Withholding).
8. Miscellaneous. This Agreement shall be construed and enforced in accordance with the internal, substantive laws of the State of New Jersey, and shall be binding upon and inure to the benefit of any successor or assign of the Company and any executor, administrator, trustee, guardian, or other legal representative of the Optionee.
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IN WITNESS WHEREOF, the parties have executed this Incentive Stock Option Agreement as a sealed instrument as of the date first above written.
AMICUS THERAPEUTICS, INC. OPTIONEE
By: ___________________________ _____________________________ Name: Title Optionee's Address: _____________________________ _____________________________ |
Exhibit A
2007 EQUITY INCENTIVE PLAN
AMICUS THERAPEUTICS, INC.
INCENTIVE STOCK OPTION AGREEMENT
(Form of Incentive Stock Option Agreement - Employee)
This INCENTIVE STOCK OPTION AGREEMENT, dated as of <date> (this "Agreement"), is between AMICUS THERAPEUTICS, INC., a Delaware corporation (the "Company"), and <Employee Name> (the "Optionee"). Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Company's 2007 Equity Incentive Plan, a copy of which is attached hereto as Exhibit A (the "Plan").
1. Grant of Option. Pursuant to the Plan, the Company grants to the
Optionee an option (the "Option") to purchase from the Company all or any number
of an aggregate of <Number of Shares> shares, subject to adjustment pursuant to
Section 8 of the Plan (the "Option Shares"), of the Company's common stock, $.01
par value per share, at a price of $<price> per share. The Option is granted as
of <Date of Grant> (the "Grant Date").
2. Character of Option. The Option is intended to be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option. Unless subject to earlier expiration or termination pursuant to the terms of the Plan or pursuant to Section 5 below, the Option shall expire on the ten year anniversary of the Grant Date.
4. Exercisability of Option. The Option may be exercised, at any time and
from time to time until its expiration or termination, for any or all of those
Option Shares in respect of which the Option shall have become exercisable, in
accordance with the provisions set forth below in this Section 4 and in the
manner provided for in the Plan. Subject to the provisions of the Plan
(including, without limitation, the provisions of Section 7.1(e) and Section 8
of the Plan), and subject to Section 5 below, the Option shall become
exercisable (i) for [______] Option Shares on [_______] (the "First Vesting
Date"), (ii) for [_______] Option Shares on the first day of each of the next
[_____] calendar months, beginning on the calendar month next following the
First Vesting Date, and (iii) for [______] Option Shares on [_______].(1)
Notwithstanding anything expressed or implied to the contrary in the foregoing
provisions of this Section 4, the exercisability of the Option may, as provided
in Section 7.1(d) of the Plan, at any time be Accelerated in the discretion of
the Committee.
5. Effect of Termination of Employment Relationship. Subject to Section 7.1(e) of the Plan, if the Optionee's employment with the Company ends, regardless of how the end of such employment is effected, or if such Optionee dies, then the Option shall cease to be exercisable in any respect not later than ninety (90) days following the end of such employment or such death and, for the period it remains exercisable following the end of such employment or such death, shall be exercisable only to the extent exercisable on the date of the end of such employment or such death (after giving effect to any Acceleration that may be applicable to the Option).
6. Transfer of Option. Other than as expressly permitted by the provisions of Section 7.1(f) of the Plan, the Option may not be transferred except by will or the laws of descent and distribution and, during the lifetime of the Optionee, may be exercised only by the Optionee.
7. Incorporation of Plan Terms. The Option is granted subject to all of
the applicable terms and provisions of the Plan, including, but not limited to,
the limitations on the Company's obligation to deliver Option Shares upon
exercise set forth in Section 9.1 (Violation of Law), Section 9.2 (Corporate
Restrictions on Rights in Stock), Section 9.3 (Investment Representations) and
Section 9.7 (Tax Withholding).
8. Miscellaneous. This Agreement shall be construed and enforced in accordance with the internal, substantive laws of the State of New Jersey, and shall be binding upon and inure to the benefit of any successor or assign of the Company and any executor, administrator, trustee, guardian, or other legal representative of the Optionee.
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IN WITNESS WHEREOF, the parties have executed this Incentive Stock Option Agreement as a sealed instrument as of the date first above written.
AMICUS THERAPEUTICS, INC. OPTIONEE
By: ___________________________ _____________________________ Name: Title Optionee's Address: _____________________________ _____________________________ |
Exhibit A
2007 EQUITY INCENTIVE PLAN
Exhibit 10.23
AMICUS THERAPEUTICS
2007 DIRECTOR OPTION PLAN
1. PURPOSE
This Plan is intended to promote the recruiting and retention of highly qualified Eligible Directors, to strengthen the commonality of interest between directors and stockholders by encouraging ownership of Common Stock of the Company by Eligible Directors, and to provide additional incentives for Eligible Directors to promote the success of the Company's business. The Plan is not intended to be an incentive stock option plan within the meaning of Section 422 of the Code. None of the Options granted hereunder will be "incentive stock options" within the meaning of Section 422 of the Code.
2. DEFINITIONS
As used in the Plan the following terms shall have the respective meanings set out below, unless the context clearly requires otherwise:
2.1. "Accelerate", "Accelerated", and "Acceleration", when used with respect to an Option, means that as of the time of reference such Option will become exercisable with respect to some or all of the shares of Common Stock for which it was not then otherwise exercisable by its terms.
2.2. "Acquiring Person" means, with respect to any Transaction or any acquisition described in clause (ii) of the definition of Change of Control, the surviving or acquiring person or entity in connection with such Transaction or acquisition, as the case may be, provided that if such surviving or acquiring person or entity is controlled, directly or indirectly, by any other person or entity (an "Ultimate Parent Entity") that is not itself controlled by any entity or person that is not a natural person, the term "Acquiring Person" shall mean such Ultimate Parent Entity.
2.3. "Affiliate" means, with respect to any person or entity, any other person or entity controlling, controlled by or under common control with the first person or entity.
2.4. "Applicable Voting Control Percentage" means twenty percent (20%).
2.5. "Beneficial Ownership" has the meaning ascribed to such term in Rule 13d-3, or any successor rule thereto, promulgated by the Securities and Exchange Commission pursuant to the Exchange Act.
2.6. "Board" means the Company's board of directors.
2.7. "Change of Control" means (i) the closing of any Sale of the Company Transaction or (ii) the direct or indirect acquisition, in a single transaction or a series of related transactions, by any person or Group (other than the Company or a Controlled Affiliate of the Company) of Beneficial Ownership of previously outstanding shares of capital stock of the Company if (A) immediately after such acquisition, such person or Group, together with their respective Affiliates, shall own or hold shares of capital stock of the Company possessing at least the Applicable Voting Control Percentage of the total voting power of the outstanding capital
stock of the Company and (B) immediately prior to such acquisition, such person or Group, together with their respective Affiliates, did not own or hold shares of capital stock of the Company possessing at least the Applicable Voting Control Percentage of the total voting power of the outstanding capital stock of the Company. Notwithstanding anything expressed or implied in the foregoing provisions of this definition to the contrary, any direct or indirect acquisition referred to in clause (ii) above in this definition shall not be treated as a Change of Control if, at any time prior to or after such direct or indirect acquisition, a majority of the members of the Board of Directors of the Company as constituted immediately prior to such direct or indirect acquisition consent in writing to exclude such direct or indirect acquisition from the scope of this definition.
2.8. "Code" means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto, and any regulations issued from time to time thereunder.
2.9. "Controlled Affiliate" means, with respect to any person or entity, any other person or entity that is controlled by such person or entity.
2.10. "Committee" means any committee of the Board delegated responsibility by the Board for the administration of the Plan, as provided in Section 5 of the Plan. For any period during which no such committee is in existence, "Committee" shall mean the Board and all authority and responsibility assigned the Committee under the Plan shall be exercised, if at all, by the Board.
2.11. "Common Stock" means common stock, par value $0.01 per share, of the Company.
2.12. "Company" means Amicus Therapeutics, Inc., a corporation organized under the laws of the State of Delaware.
2.13. "Eligible Director" means a director of one or more of the Company and its Subsidiaries who is not also an employee or officer of one or more of the Company and its Subsidiaries.
2.14. "Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.15. "Grant Date" means the date as of which an Option is granted, as determined under Section 7.1.
2.16. "Group" has the meaning ascribed to such term in Section 13(d)(3) of the Exchange Act or any successor section thereto.
2.17. "Holder" means, with respect to any Option, (a) the Optionee to whom such Option shall have been initially granted under the Plan, or (b) any transferee of such Option to whom such Option shall have been transferred in accordance with the provisions set forth herein.
2.18. "Market Value" means the value of a share of Common Stock on a particular date determined by such methods or procedures as may be established by the Committee. Unless otherwise determined by the Committee, the Market Value of Common Stock as of any date is the closing price for the Common Stock as reported on the Nasdaq Global Market (or on any other national securities exchange on which the Common Stock is then listed) for that date 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.
2.19. "Option" means an option granted under the Plan to purchase shares of Common Stock.
2.20. "Option Agreement" means an agreement between the Company and the Holder of an Option, setting forth the terms and conditions of the Option.
2.21. "Optionee" means an Eligible Director to whom an Option shall have been granted under the Plan.
2.22. "Plan" means this 2007 Director Option Plan of the Company, as amended and in effect from time to time.
2.23. "Sale of the Company Transaction" means any Transaction in which the stockholders of the Company immediately prior to such Transaction, together with any and all of such stockholders' Affiliates, do not own or hold, immediately after consummation of such Transaction, shares of capital stock of the Acquiring Person in connection with such Transaction possessing at least a majority of the total voting power of the outstanding capital stock of such Acquiring Person.
2.24. "Securities Act" means the Securities Act of 1933, as amended.
2.25. "Transaction" means any merger or consolidation of the Company with or into another person or entity or the sale or transfer of all or substantially all of the assets of the Company, in each case in a single transaction or in a series of related transactions.
3. TERM OF THE PLAN
Unless the Plan shall have been earlier terminated by the Board, Options may be granted under this Plan at any time in the period commencing upon the effectiveness of the Plan in accordance with the provisions of Section 17 hereof and ending immediately prior to the tenth anniversary of the adoption of the Plan by the Board. Options granted pursuant to the Plan within such period shall not expire solely by reason of the termination of the Plan.
4. STOCK SUBJECT TO THE PLAN
Subject to the provisions of Section 8 of the Plan, at no time shall the number of shares of Common Stock issued pursuant to or subject to outstanding Options granted under the Plan exceed the sum of (a) two hundred thousand (200,000) shares of Common Stock plus (b) an annual increase to be added, automatically and without further action, on January 1 of each calendar year equal to the lesser of (i) sixty six thousand six hundred sixty seven (66,667) shares of Common Stock and (ii) one fourth of one percent (0.25%) of the Company's outstanding equity on a fully diluted basis (calculated by treating all outstanding warrants, stock options and convertible securities of the Company, whether or not then vested or exercisable, as if they had been exercised for or converted into the full number of shares of capital stock of the Company subject to such outstanding warrants, stock options and convertible securities), on the December 31 that immediately precedes such January 1; provided, however, that the Board may, at any time and on any one or more occasions, take action to waive the annual increase set forth in clause (b), in whole or in part. For purposes of applying the foregoing
limitation, (a) if any Option expires, terminates, or is cancelled for any reason without having been exercised in full, the shares not purchased by the Optionee (or the Holder of such Option) shall again be available for Options thereafter to be granted under the Plan, and (b) if any Option is exercised by delivering previously owned shares in payment of the exercise price therefor, only the net number of shares, that is, the number of shares issued minus the number received by the Company in payment of the exercise price, shall be considered to have been issued pursuant to an Option granted under the Plan. Shares of Common Stock issued pursuant to the Plan may be either authorized but unissued shares or shares held by the Company in its treasury.
5. ADMINISTRATION
The Plan shall be administered by the Committee; provided, however, that at any time and on any one or more occasions the Board may itself exercise any of the powers and responsibilities assigned the Committee under the Plan and when so acting shall have the benefit of all of the provisions of the Plan pertaining to the Committee's exercise of its authorities hereunder. Subject to the provisions of the Plan, the Committee shall have complete authority to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to it, to determine the terms and provisions of the respective Option Agreements (which need not be identical), and to make all other determinations necessary or advisable for the administration of the Plan. The Committee's determinations made in good faith on matters referred to in this Plan shall be final, binding and conclusive on all persons having or claiming any interest under the Plan or an Option made pursuant hereto.
6. AUTHORIZATION AND ELIGIBILITY
Only Eligible Directors shall be granted Options under the Plan. Each grant
of an Option shall be subject to all applicable terms and conditions of the Plan
(including but not limited to any specific terms and conditions set forth in
Section 7 below), and such other terms and conditions, not inconsistent with the
terms of the Plan, as the Committee may prescribe. No prospective holder of an
Option shall have any rights with respect to such Option, unless and until such
holder has executed an agreement evidencing the Option, delivered a fully
executed copy thereof to the Company, and otherwise complied with the applicable
terms and conditions of such Option.
7. SPECIFIC TERMS OF OPTIONS
7.1. Annual Grants. Subject to the Plan's effectiveness as set forth in
Section 17 and to the provisions set forth below in this Section 7.1, on the
date of each annual meeting of stockholders of the Company, commencing with the
2008 annual meeting of stockholders, each Eligible Director who continues to be
a director of the Company as of the close of business on the date of such annual
meeting of stockholders shall be granted an Option as of the close of business
on such date, to purchase Ten Thousand (10,000) shares of Common Stock (subject
to adjustment as set forth in Section 8) or such other greater or smaller number
of shares of Common Stock as the Board shall have set by resolution of the Board
prior to the date of such annual meeting of stockholders (unless such resolution
shall provide that such Eligible Director shall not receive an Option under this
Section 7.1 at such annual meeting of stockholders, in which case such Eligible
Director shall not be granted any Option under this Section 7.1 as of the close
of business on the date of such annual meeting). Subject to the provisions of
this Section 7.1 or Section 9 hereof, grants of
Options under this Section 7.1 shall occur automatically without any action being required of the Optionee, the Committee, the Board, the Company or any other person, entity or body.
7.2. Certain Terms of Option; Exercise Price. Each Option granted to an
Optionee under this Section 7 shall have an exercise price equal to 100% of the
Market Value of the Stock on the applicable Grant Date. No Option granted
pursuant to this Plan is intended to qualify as an incentive stock option within
the meaning of Section 422 of the Code. The grants shall be evidenced by Option
Agreements containing provisions that are in all respects consistent with this
Section 7. All of such Option Agreements shall contain identical terms and
conditions, except as otherwise required or permitted by this Section 7.
7.3. Option Period. The option period for each Option granted pursuant to the Plan shall be ten (10) years from the Grant Date of such Option.
7.4. Exercisability. Subject to Section 7.5 below, each Option granted to an Eligible Director pursuant to Section 7.1 above shall automatically become exercisable for 100% of the shares of Common Stock subject to such Option on the date of the annual meeting of stockholders of the Company in the calendar year following the calendar year during which such Option was automatically granted. In the case of an Option not otherwise immediately exercisable in full, the Committee may Accelerate such Option in whole or in part at any time.
7.5. Effect of Termination of Board Member Relationship. Unless the Committee at any time shall provide otherwise with respect to any Option, if an Optionee ceases to be a director of the Company and its Affiliates for any reason or no reason (whether voluntarily or involuntarily, including as a result of death), any outstanding Option initially granted to such Optionee, whether then held by such Optionee or any other Holder, shall cease to be exercisable in any respect not later than ninety (90) days following that event and, for the period it remains exercisable following that event, shall be exercisable only to the extent exercisable at the date of that event.
7.6. Transferability. Except as otherwise provided in this Section 7.6,
Options shall not be transferable, and no Option or interest therein may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution (subject always to
the provisions of Section 7.5 hereof). Except as otherwise provided in this
Section 7.6, all of a Holder's rights in any Option may be exercised only during
the life of such Holder and only by such Holder or such Holder's legal
representative. However, the applicable Option Agreement or the Committee (at or
after the grant of an Option) may provide that an Option may be transferred by
the applicable Holder to a family member; provided, however, that any such
transfer is without payment of any consideration whatsoever and that no transfer
of an Option shall be valid unless first approved by the Committee, acting in
its sole discretion, unless such transfer is permitted under the applicable
Option Agreement. For this purpose, "family member" means any child, stepchild,
grandchild, parent, stepparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the applicable Holder's household (other than a tenant or employee), a trust in which the foregoing persons and/or the applicable Holder have more than fifty percent (50%) of the beneficial interests, a foundation in which the foregoing persons and/or the applicable Holder control the management of assets, and any other entity in which these persons and/or the applicable Holder own more than fifty percent (50%) of the voting interests. The Committee may at any time or from time to time delegate to one or more officers of the Company the authority to permit transfers of Options to third parties pursuant to this Section 7.6, which authorization shall be exercised by such officer or officers in accordance with guidelines established by the Committee at any time and from time to time. The restrictions on transferability set forth in this Section 7.6, shall in no way preclude any Holder from effecting "cashless" exercises of an Option pursuant to the terms of the Plan.
7.7. Method of Exercise. An Option may be exercised by the Holder of such Option by giving written notice, in the manner provided in Section 15, specifying the number of shares of Common Stock with respect to which the Option is then being exercised. The notice shall be accompanied by payment in the form of cash or check payable to the order of the Company in an amount equal to the exercise price of the shares of Common Stock to be purchased or, subject in each instance to the Committee's approval, acting in its sole discretion and subject to such conditions, if any, as the Committee may deem necessary to comply with applicable laws, rules and regulations and to avoid adverse accounting effects to the Company, by delivery to the Company of shares of Common Stock having a Market Value equal to the exercise price of the shares to be purchased. No Holder shall be permitted to effect payment of any amount of the exercise price of the shares of Common Stock to be purchased by executing and delivering to the Company a promissory note. If the Common Stock is traded on an established market, payment of any exercise price may also be made through and under the terms and conditions of any formal cashless exercise program authorized by the Company entailing the sale of the Common Stock subject to any Option in a brokered transaction (other than to the Company). Receipt by the Company of such notice and payment in any authorized or combination of authorized means shall constitute the exercise of the Option. Within thirty (30) days thereafter but subject to the remaining provisions of the Plan, the Company shall deliver or cause to be delivered to the Holder or his agent a certificate or certificates for the number of shares then being purchased. Such shares shall be fully paid and nonassessable. Notwithstanding any of the foregoing provisions in this subsection 7.7 to the contrary, (A) no Option shall be considered to have been exercised unless and until all of the provisions governing such exercise specified in the Plan and in the relevant Option Agreement shall have been duly complied with; and (B) the obligation of the Company to issue any shares upon exercise of an Option is subject to the provisions of Section 9.1 hereof and to compliance by the Holder with all of the provisions of the Plan and the relevant Option Agreement.
7.8. Rights Pending Exercise. No person holding an Option shall be deemed for any purpose to be a stockholder of the Company with respect to any of the shares of Common Stock issuable pursuant to his Option, except to the extent that the Option shall have been exercised with respect thereto and, in addition, a certificate shall have been issued therefor and delivered to such holder or his agent.
7.9 Grants to Optionee's Outside the United States. The Committee may modify the terms of any Option under the Plan granted to an Optionee who is, at the time of grant or during the term of the Option, resident or primarily employed outside of the United States in any manner deemed by the Committee to be necessary or appropriate in order that such Option shall conform
to laws, regulations, and customs of the country in which such Optionee is then
resident or primarily employed, or so that the value and other benefits of the
Option to such Optionee, as affected by foreign tax laws and other restrictions
applicable as a result of such Optionee's residence or employment abroad, shall
be comparable to the value of such Option to an Optionee who is resident or
primarily employed in the United States. An Option may be modified under this
Section 7.9 in a manner that is inconsistent with the express terms of the
Plan, so long as such modifications will not contravene any applicable law or
regulation. The Committee may establish supplements to, or amendments,
restatements, or alternative versions of the Plan for the purpose of granting
and administrating any such modified Option. No such modification, supplement,
amendment, restatement or alternative version may increase the share limit of
Section 4.
8. ADJUSTMENT PROVISIONS
8.1. Adjustment for Corporate Actions. All of the share numbers set forth in the Plan reflect the capital structure of the Company immediately after the closing of the initial public offering of the Company's Common Stock. Subject to the provisions of Section 8.2, if subsequent to such closing the outstanding shares of Common Stock (or any other securities covered by the Plan by reason of the prior application of this Section) are increased, decreased, or exchanged for a different number or kind of shares or other securities, or if additional shares or new or different shares or other securities are distributed with respect to such shares of Common Stock or other securities, through merger, consolidation, sale of all or substantially all the property of the Company, reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split, or other distribution with respect to such shares of Common Stock, or other securities, an appropriate and proportionate adjustment will be made in (i) the maximum numbers and kinds of shares provided in Section 4, (ii) the numbers and kinds of shares or other securities subject to the then outstanding Options, and (iii) the exercise price for each share or other unit of any other securities subject to then outstanding Options (without change in the aggregate purchase price as to which such Options remain exercisable).
8.2. Change of Control. Subject to the applicable provisions of the Option Agreement, in the event of a Change of Control, the Committee shall have the discretion, exercisable in advance of, at the time of, or (except to the extent otherwise provided below) at any time after, the Change of Control, to provide for any or all of the following (subject to and upon such terms as the Committee may deem appropriate): (A) the assumption of outstanding Options, or the substitution of outstanding Options with equivalent options, by the acquiring or succeeding corporation or entity (or an affiliate thereof); or (B) the termination of all Options (other than Options that are assumed or substituted pursuant to clause (A) above) that remain outstanding at the time of the consummation of the Change of Control, provided that, the Committee shall have made the determination to effect such termination prior to the consummation of the Change of Control and the Committee shall have given, or caused to be given, to all Optionees written notice of such potential termination at least five business days prior to the consummation of the Change of Control, and provided, further, that, if the Committee shall have determined in its sole and absolute discretion that the Corporation make payment or provide consideration to the holders of such terminated Options on account of such termination, which payment or consideration shall be on such terms and conditions as the Committee shall have determined (and which could consist of, in the Committee's sole and absolute discretion, payment to the applicable Optionee or Optionees of an amount of cash equal to the difference between the Market Value of the shares of Common Stock for which the Option is then exercisable and the aggregate exercise price for such shares under the Option), then the Corporation shall be required to make, or cause to be made, such payment or provide, or cause to be provided,
such consideration in accordance with the terms and conditions so determined by
the Committee; otherwise the Corporation shall not be required to make any
payment or provide any consideration in connection with, or as a result of, the
termination of Options pursuant to the foregoing provisions of this clause (B).
Upon the occurrence of a Change of Control, any and all Options not already
exercisable in full shall Accelerate with respect to all of the shares of Common
Stock for which such Options are not then exercisable. In the case of any Option
that would be terminated pursuant to clause (B) above of this Section 8.2 upon
consummation of a Change of Control, such Option, to the extent not already
exercisable in full on the date the Holder thereof is given written notice of
such potential termination as required by the foregoing provisions of this
Section 8.2, shall, on the date such written notice of termination is given or
required to be given, Accelerate with respect to all of the shares of Common
Stock for which such Option is not then exercisable; provided, however, that if
such Change of Control is not and will not be consummated then the Acceleration
of such Option pursuant to the provisions of this sentence, but only if and to
the extent that such Option remains outstanding at the time written notice is
given to the Holder thereof that such Change of Control has not and will not be
consummated, shall be automatically revoked and such Option shall thereafter
continue to be exercisable in accordance with its terms as if the Acceleration
thereof pursuant to this sentence had never occurred. The provisions of this
Section 8.2 shall not be construed as to limit or restrict in any way the
Committee's general authority under Sections 7.4 hereof to Accelerate Options in
whole or in part at any time. Each outstanding Option that is assumed in
connection with a Change of Control, or is otherwise to continue in effect
subsequent to a Change of Control, will be appropriately adjusted, immediately
after the Change of Control, as to the number and class of securities and the
price at which it may be exercised in accordance with Section 8.1.
8.3. Dissolution or Liquidation. Upon dissolution or liquidation of the Company, each outstanding Option shall terminate, but the Optionee (if at the time he or she is a board member of the Company or any of its Affiliates) shall have the right, immediately prior to such dissolution or liquidation, to exercise the Option to the extent exercisable on the date of such dissolution or liquidation.
8.4. Related Matters. Any adjustment in Options made pursuant to this
Section 8 shall be determined and made, if at all, by the Committee and shall
include any correlative modification of terms, including exercise prices, rates
of vesting or exercisability which the Committee may deem necessary or
appropriate so as to ensure that the rights of the Holders in their respective
Options are not substantially diminished nor enlarged as a result of the
adjustment and corporate action other than as expressly contemplated in this
Section 8. No fraction of a share shall be purchasable or deliverable upon
exercise, but in the event any adjustment hereunder of the number of shares
covered by an Option shall cause such number to include a fraction of a share,
such number of shares shall be adjusted to the nearest smaller whole number of
shares. No adjustment of an Option exercise price per share pursuant to this
Section 8 shall result in an exercise price which is less than the par value of
the Common Stock.
9. SETTLEMENT OF OPTIONS
9.1. Violation of Law. Notwithstanding any other provision of the Plan or the relevant Option Agreement, if, at any time, in the reasonable opinion of the Company, the issuance of shares of Common Stock covered by an Option 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.
9.2. Corporate Restrictions on Rights in Stock. Any Common Stock to be issued pursuant to Options 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 Option, if the Committee so directs at the time of grant (or, if such Option 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 Option Agreement to the contrary, to issue such shares until such time, if ever, as the recipient of the Option (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 Options 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.
9.3. Investment Representations. The Company shall be under no obligation to issue any shares covered by an Option unless the shares to be issued pursuant to Options granted under the Plan have been effectively registered under the Securities Act or the Holder 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 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.
9.4. 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 Options 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 Option, 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.
9.5. 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 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 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 and applicability 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, 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 Holders 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.
9.6. Placement of Legends; Stop Orders; Etc. Each share of Common Stock to be issued pursuant to Options 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 Option and, if applicable, under any agreement between the Company and the 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.
9.7. Tax Withholding. Whenever shares of Common Stock are issued or to be issued pursuant to Options 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 Option. However, in such cases Holders may elect,
subject to the 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. Holders may only elect to have shares of Common Stock withheld having a Market Value on the date the tax is to be determined equal to the minimum statutory total tax which could be imposed on the transaction. All elections shall be irrevocable, made in writing, signed by the Holder, and shall be subject to any restrictions or limitations that the Committee deems appropriate.
10. RESERVATION OF STOCK
The Company shall at all times during the term of the Plan and any outstanding Options granted hereunder reserve or otherwise keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of the Plan (if then in effect) and such Options and shall pay all fees and expenses necessarily incurred by the Company in connection therewith.
11. NO SPECIAL SERVICE RIGHTS
Nothing contained in the Plan or in any Option Agreement shall confer upon any recipient of an Option any right with respect to any consulting or Board member relationship or other association with the Company (or any Affiliate), or interfere in any way with the right of the Company (or any Affiliate), subject to the terms of any separate agreement or provision of law or corporate articles or by-laws to the contrary, at any time to terminate Board member or to increase or decrease, or otherwise adjust, the other terms and conditions of the recipient's Board member relationship or other association with the Company and its Affiliates.
12. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the Plan to the stockholders of the Company shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including without limitation, the granting of stock options and restricted stock other than under the Plan, and such arrangements may be either applicable generally or only in specific cases.
13. TERMINATION AND AMENDMENT OF THE PLAN
The Board may at any time terminate the Plan or make such amendments or modifications of the Plan as it shall deem advisable. In the event of the termination of the Plan, the terms of the Plan shall survive any such termination with respect to any Option that is outstanding on the date of such termination, unless the holder of such Option agrees in writing to terminate such Option or to terminate all or any of the provisions of the Plan that apply to such Option. Unless the Board otherwise expressly provides, any amendment or modification of the Plan shall affect the terms of any Option outstanding on the date of such amendment or modification as well as the terms of any Option made prior to, or from and after, the date of such amendment or modification; provided, however, that, except to the extent otherwise provided in the last sentence of this paragraph, (i) no amendment or modification of the Plan shall apply to any Option that is outstanding on the date of such amendment or modification if such amendment or modification would reduce the number of shares subject to such Option, increase the purchase price applicable to shares subject to such Option or materially adversely affect the provisions applicable to such Option that relate to the vesting or exercisability of such Option or of the shares subject to such Option, and (ii) no amendment or modification of the Plan shall apply to
any Option that is outstanding on the date of such amendment or modification
unless such amendment or modification of the Plan shall also apply to all other
Options outstanding on the date of such amendment or modification. In the event
of any amendment or modification of the Plan that is described in clause (i) or
(ii) of the foregoing proviso, such amendment or modification of the Plan shall
apply to any Option outstanding on the date of such amendment or modification
only if the recipient of such Option consents in writing thereto.
The Committee may amend or modify, prospectively or retroactively, the
terms of any outstanding Option without amending or modifying the terms of the
Plan itself, provided that as amended or modified such Option is consistent with
the terms of the Plan as in effect at the time of the amendment or modification
of such Option, but no such amendment or modification of such Option shall,
without the written consent of the recipient of such Option, reduce the number
of shares subject to such Option, increase the purchase price applicable to
shares subject to such Option, adversely affect the provisions applicable to
such Option that relate to the vesting or exercisability of such Option or of
the shares subject to such Option, or otherwise materially adversely affect the
terms of such Option (except for amendments or modifications to the terms of
such Option or of the stock subject to such Option that are expressly permitted
by the terms of the Plan or that result from any amendment or modification of
the Plan in accordance with the provisions of the first paragraph of this
Section 13). The Committee is expressly authorized to amend any or all
outstanding Options to effect a repricing thereof by lowering the purchase price
applicable to the shares of Common Stock subject to such Option or Options
without the approval of the stockholders of the Company or the Holder or Holders
of such Option or Options, and, notwithstanding any of the foregoing provisions
of this paragraph to the contrary, in connection with such repricing to amend or
modify any of the other terms of the Option or Options so repriced, including,
without limitation, for purposes of reducing the number of shares subject to
such Option or Options or for purposes of adversely affecting the provisions
applicable to such Option or Options that relate to the vesting or
exercisability thereof, in each case without the approval of stockholders of the
Company or the Holder or Holders of such Option or Options.
In addition, notwithstanding anything express or implied in any of the foregoing provisions of this Section 13 to the contrary, the Committee may amend or modify, prospectively or retroactively, the terms of any outstanding Option to the extent the Committee reasonably determines necessary or appropriate to conform such Option to the requirements of Section 409A of the Code (concerning non-qualified deferred compensation), if applicable.
14. INTERPRETATION OF THE PLAN
In the event of any conflict between the provisions of this Plan and the provisions of any applicable Option Agreement, the provisions of this Plan shall control, except if and to the extent that the conflicting provision in such Option Agreement was authorized and approved by the Committee at the time of the grant of the Option evidenced by such Option Agreement or is ratified by the Committee at any time subsequent to the grant of such Option, in which case the conflicting provision in such Option Agreement shall control. Without limiting the generality of the foregoing provisions of this Section 14, insofar as possible the provisions of the Plan and such Option Agreement shall be construed so as to give full force and effect to all such provisions. In the event of any conflict between the provisions of this Plan and the provisions of any other agreement between the Company and the Holder, the provisions of such agreement shall control, but insofar as possible the provisions of the Plan and any such agreement shall be construed so as to give full force and effect to all such provisions.
15. NOTICES AND OTHER COMMUNICATIONS
Any notice, demand, request or other communication hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or duly sent by first class registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the recipient of an Option, at his or her residence address last filed with the Company and (ii) if to the Company, at its principal place of business, addressed to the attention of its Chief Executive Officer, or to such other address or telecopier number, as the case may be, as the addressee may have designated by notice to the addressor. All such notices, requests, demands and other communications shall be deemed to have been received: (i) in the case of personal delivery, on the date of such delivery; (ii) in the case of mailing, when received by the addressee; and (iii) in the case of facsimile transmission, when confirmed by facsimile machine report.
16. GOVERNING LAW
The Plan and all Option Agreements and actions taken thereunder shall be governed, interpreted and enforced in accordance with the laws of the State of New Jersey, without regard to the conflict of laws principles thereof.
17. EFFECTIVENESS OF PLAN
This 2007 Director Option Plan was approved in May 2007 by the Board and by the stockholders of the Company, and shall take effect only upon the consummation of the Company's initial public offering of its Common Stock.
AMICUS THERAPEUTICS, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
(Form of Non-Statutory Stock Option Agreement for Annual Automatic Grants to Directors)
This NON-STATUTORY STOCK OPTION AGREEMENT, dated as of [date] (this "Agreement"), is between AMICUS THERAPEUTICS, INC., a Delaware corporation (the "Company"), and [Optionee Name] (the "Optionee"). Capitalized terms used herein without definition shall have the meaning ascribed to such terms in the Company's 2007 Director Option Plan, a copy of which is attached hereto as Exhibit A (as amended, the "Plan").
1. Grant of Option. Pursuant to the Plan, the Company automatically grants to the Optionee an option (the "Option") to purchase from the Company all or any number of an aggregate of [10,000] shares, subject to adjustment pursuant to Section 8 of the Plan (the "Option Shares"), of the Company's common stock, $.01 par value per share, at a price of $(price) per share. The Option is automatically granted as of [Date of Grant] (the "Grant Date").
2. Character of Option. The Option is not intended to be treated as an "incentive stock option" within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
3. Duration of Option. Unless subject to earlier expiration or termination pursuant to the terms of the Plan or pursuant to Section 5 below, the Option shall expire on the ten year anniversary of the Grant Date.
4. Exercise of Option. The Option may be exercised, at any time and from time to time until its expiration or termination, for any or all of those Option Shares in respect of which the Option shall have become exercisable, in accordance with the provisions set forth below in this Section 4 and in the manner provided for in the Plan. Subject to the provisions of the Plan (including, without limitation, the provisions of Section 7.4 of the Plan), the Option shall become exercisable for 100% of the Option Shares on the date of the annual meeting of the stockholders of the Company in the calendar year following the calendar year of the Grant Date . Notwithstanding anything expressed or implied to the contrary in the foregoing provisions of this Section 4(a), (A) the exercisability of the Option shall, as provided in Section 8.2 of the Plan, be automatically Accelerated under certain circumstances specified in Section 8,2 of the Plan, including, without limitation, upon the occurrence of a Change of Control and (B) the exercisability of the Option may, as provided in Section 7.4 of the Plan, at any time be Accelerated in the discretion of the Committee.
5. Effect of Termination of Board Member Relationship. Subject to
Section 7.5 of the Plan, if the Optionee ceases to be a director of the Company,
for any reason or no reason, then the Option shall cease to be exercisable in
any respect not later than ninety (90) days following that event and, for the
period it remains exercisable following that event, shall be exercisable only to
the extent exercisable at the date of that event (after giving effect to any
Acceleration that may be applicable to the Option).
6. Transfer of Option. Other than as expressly permitted by the provisions of Section 7.6 of the Plan, the Option may not be transferred except by will or the laws of descent and distribution and, during the lifetime of the Optionee, may be exercised only by the Optionee.
7. Incorporation of Plan Terms. The Option is granted subject to all of
the applicable terms and provisions of the Plan, including, but not limited to,
the limitations on the Company's obligation to deliver Option Shares upon
exercise set forth in Section 9.1 (Violation of Law), Section 9.2 (Corporate
Restrictions on Rights in Stock), Section 9.3 (Investment Representations) and
Section 9.7 (Tax Withholding).
8. Miscellaneous. This Agreement shall be construed and enforced in accordance with the internal, substantive laws of The State of New Jersey, and shall be binding upon and inure to the benefit of any successor or assign of the Company and any executor, administrator, trustee, guardian, or other legal representative of the Optionee.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the parties have executed this Non-Statutory Stock Option Agreement as a sealed instrument as of the date first above written.
AMICUS THERAPEUTICS, INC. OPTIONEE By: _____________________________ ___________________________ Name: Title Optionee's Address: ----------------------------- ----------------------------- |
Exhibit A
2007 DIRECTOR OPTION PLAN
Exhibit 10.24
AMICUS THERAPEUTICS, INC.
2007 EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the 2007 Employee Stock Purchase Plan of Amicus Therapeutics, Inc.
1. PURPOSE
The purpose of the Plan is to provide employees of the Company and its Designated Subsidiaries with an opportunity to purchase Common Stock of the Company. It is the intention of the Company to have the Plan qualify as an "Employee Stock Purchase Plan" under Section 423 of the Code. The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code.
2. DEFINITIONS
2.1. Board means the Board of Directors of the Company.
2.2. Code means the Internal Revenue Code of 1986, as amended.
2.3. Common Stock means the common stock, par value $0.01 per share, of the Company.
2.4. Company means Amicus Therapeutics, Inc., a Delaware corporation.
2.5. Compensation means all regular straight time compensation including commissions but shall not include payments for overtime, shift premium, incentive compensation, incentive payments, bonuses and other irregular or infrequent compensation or benefits.
2.6. Continuous Status as an Employee means the absence of any interruption or termination of service as an Employee. Continuous Status as an Employee shall not be considered interrupted in the case of (i) sick leave; (ii) military leave; (iii) any other leave of absence approved by the Administrator, provided that such leave is for a period of not more than 90 days, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to Company policy adopted from time to time; or (iv) in the case of transfers between locations of the Company or between the Company and its Designated Subsidiaries.
2.7. Contributions means all amounts credited to the account of a participant pursuant to the Plan.
2.8. Corporate Transaction means a merger or consolidation of the Company with and into another person or the sale, transfer, or other disposition of all or substantially all of the Company's assets to one or more persons (other than any wholly-owned subsidiary of the Company) in a single transaction or series of related transactions.
2.9. Designated Subsidiaries means the Subsidiaries which have been designated by the Board from time to time in its sole discretion as eligible to participate in the Plan.
2.10. Employee means any person, including an Officer, who is customarily employed for at least twenty (20) hours per week and more than five (5) months in a calendar year by the Company or one of its Designated Subsidiaries.
2.11. Entry Date shall mean the date an Employee first commences participation in the Offering Period then in effect under the Plan.
2.12 Exchange Act means the Securities Exchange Act of 1934, as amended.
2.13. Offering Commencement Date means the first business day of each Offering Period of the Plan.
2.14. Offering Period means any of the successive periods provided for in
Section 4.1.
2.15. Officer means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.
2.16. Offering Termination Date means the last business day of each Offering Period of the Plan.
2.17. Plan means this Employee Stock Purchase Plan.
2.18. Purchase Period shall mean each successive period within an Offering Period, as described in Section 4.2, at the end of which each participant shall purchase Shares.
2.19 Purchase Period Commencement Date means the first business day of each Purchase Period.
2.20 Purchase Period Termination Date means the last business day of each Purchase Period.
2.21 Purchase Price means with respect to a Purchase Period an amount
equal to eighty five percent (85%) of the (a) Fair Market Value (as defined in
Section 7.4 below) of a Share on the participant's Entry Date into the then
existing Offering Period or (b) the Fair Market Value on the Purchase Period
Termination Date, whichever is lower; provided, however, that if (i) there is an
increase in the number of Shares available for issuance under the Plan as a
result of a stockholder-approved amendment to the Plan, (ii) all or a portion of
such additional Shares are to be issued with respect to the Purchase Period
underway at the time of such increase ("Additional Shares"), and (iii) the Fair
Market Value of a Share of Common Stock on the date of such increase (the
"Approval Date Fair Market Value") is higher than the Fair Market Value
described in clause (a) above, then in such instance the Purchase Price with
respect to Additional Shares shall be eighty five percent (85%) of the Approval
Date Fair Market Value or the Fair Market Value of a Share of Common Stock on
the Purchase Period Termination Date, whichever is lower; and provided further,
that for each participant whose Entry Date is other than the Offering
Commencement Date of the Offering Period, the amount in clause (a) above shall
in no event be less than the Fair Market Value per Share on the Offering
Commencement Date of that Offering Period.
2.22. Share means a share of Common Stock, as adjusted in accordance with
Section 18 of the Plan.
2.23. Subsidiary means a corporation, in an unbroken chain of corporations beginning with the Company if, at the time of the granting of the option, each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.
3. ELIGIBILITY
3.1 Subject to the requirements of Sections 5.1 and the limitations imposed by Section 423(b) of the Code, any person who is an Employee shall be eligible to participate in an Offering Period under the Plan on the start date of any Purchase Period within such Offering Period.
3.2 Any provisions of the Plan to the contrary notwithstanding, no Employee shall be granted an option under the Plan (i) if, immediately after the grant, such Employee (taking into account stock which would be attributed to such Employee pursuant to Section 424(d) of the Code) would own capital stock of the Company and/or hold outstanding options to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company or of any Subsidiary of the Company, or (ii) if such option would permit his or her rights to purchase stock under all employee stock purchase plans (described in Section 423 of the Code) of the Company and its Subsidiaries to accrue at a rate which exceeds Twenty-Five Thousand Dollars ($25,000) of the Fair Market Value (as defined in Section 7.4 below) of such stock (determined on the basis of the Fair Market Value of such stock on the date or dates such option was granted) for each calendar year in which such option is outstanding at any time.
4. OFFERING AND PURCHASE PERIODS
4.1 Shares shall be offered for purchase under the Plan through a series of successive or non-overlapping Offering Periods until such time as (i) the maximum number of Shares available for issuance under the Plan shall have been purchased or (ii) the Plan shall have been sooner terminated. Each Offering Period shall be of such duration (not to exceed twenty-four (24) months) and commence on such dates as determined by the Board or a committee designated by the Board prior to the Offering Period Commencement Date and in accordance with the terms of the Plan. At any time and from time to time, the Board may change the duration and/or the frequency of Offering Periods or suspend operation of the Plan with respect to Offering Periods not yet commenced.
4.2 Each Offering Period shall be comprised of a series of successive (or one) quarterly Purchase Periods. Unless otherwise established by the Board as of any Offering Commencement Date, Purchase Periods shall commence on the first business day in July, October, January and April each year and shall end on the last business day in the following September, December, March and June, respectively, each year.
5. PARTICIPATION
5.1. An eligible Employee may become a participant in the Plan by completing a subscription agreement on the form provided by the Company and filing it with the Company's payroll office prior to the Corporation's enrollment deadlines for the Purchase Period during which such Employee desires to enter the Offering Period, unless a later time for filing the subscription agreement is set by the Board for all eligible Employees with respect to a given
Purchase Period. If the Employee meets the enrollment deadlines for the Purchase Period, his or her Entry Date for purposes of the relevant Offering Period will be the Purchase Period Commencement Date for that Purchase Period. The subscription agreement shall set forth the percentage of the participant's Compensation (subject to Section 6.1 below) to be paid as Contributions pursuant to the Plan.
5.2. Payroll deductions shall commence on the first payroll following the Purchase Period Commencement Date and shall end on the last payroll paid on or prior to the Purchase Period Termination Date, unless sooner terminated by the participant as provided in Section 10.
6. METHOD OF PAYMENT OF CONTRIBUTIONS
6.1. A participant may elect to have payroll deductions made on each payday during any Purchase Period in an amount not less than one percent (1%) and not more than fifteen percent (15%) (or such other percentage as the Board may establish from time to time before any Purchase Period Commencement Date) of such participant's Compensation on each payday during the Purchase Period. All payroll deductions made by a participant shall be credited to his or her account under the Plan. A participant may not make any additional payments into such account.
6.2. A participant may discontinue his or her participation in the Plan as provided in Section 10. In addition, if the Board has so announced to Employees at least five (5) days prior to the scheduled beginning of the next Purchase Period to be affected by the Board's determination, a participant may, on one occasion only during each Purchase Period, change the rate of his or her Contributions with respect to the Purchase Period by completing and filing with the Company a new subscription agreement authorizing a change in the payroll deduction rate. If otherwise permitted, no such change shall enable a participant to resume Contributions other than as of an Offering Commencement Date, following a withdrawal of Contributions during an Offering Period pursuant to Section 10. Any such change in rate shall be effective as of the first payroll period following the date of filing of the new subscription agreement, if the agreement is filed at least ten (10) business days prior to such period and, if not, as of the second following payroll period.
6.3. Notwithstanding the foregoing, to the extent necessary to comply with
Section 423(b)(8) of the Code and Section 3.2 herein, a participant's payroll
deductions may be decreased during any Purchase Period to zero percent (0%).
Payroll deductions reduced to zero percent (0%) in compliance with this Section
6.3 shall re-commence automatically at the rate provided in such participant's
subscription agreement at the beginning of the next Purchase Period, unless
terminated by the participant as provided in Section 10.
7. GRANT AND EXERCISE OF OPTIONS
7.1. A participant shall be granted a separate purchase right for each Offering Period in which he or she participates. The purchase right shall be granted on the participant's Entry Date into the Offering Period and shall provide the participant with the right to purchase Shares, in a series of successive installments over the remainder of such Offering Period, upon the terms set forth below.
7.2 Each purchase right shall be automatically exercised in installments on each Purchase Period Termination Date within the Offering Period, and Shares shall accordingly be
purchased on behalf of each participant on each such Purchase Period Termination Date. The purchase shall be effected by applying the Participant's payroll deductions for the Purchase Period ending on such Purchase Period Termination Date to the purchase of Shares (subject to the limitation on the maximum number of Shares purchasable per Participant on any one Purchase Period Termination Date) at the Purchase Price in effect for the Participant for that Purchase Period Termination Date. No fractional shares shall be issued. The Shares purchased upon exercise of an option hereunder shall be deemed to be transferred to the participant on the Purchase Period Termination Date. During his or her lifetime, a participant's option to purchase Shares hereunder is exercisable only by him or her.
7.3 The number of Shares purchasable by a participant on each Purchase Period Termination Date during the Offering Period shall be determined by dividing such Employee's Contributions accumulated during such Purchase Period prior to such Purchase Period Termination Date and retained in the participant's account as of the Purchase Period Termination Date by the applicable Purchase Price. However, the maximum number of Shares an Employee may purchase during each Purchase Period shall be 25,000 Shares, and provided further that such purchase shall be subject to the limitations set forth in Sections 3.2 and 12.
7.4. The fair market value of the Company's Common Stock on a given date (the "Fair Market Value") means the value of a share of Common Stock on a particular date determined by such methods or procedures as may be established by the Committee. Unless otherwise determined by the Committee, the Fair Market Value of the Common Stock as of any date, is the closing price for the Common Stock as reported by The NASDAQ Global Market (or on any other national securities exchange on which the Common Stock is then listed) for that date 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.
8. [INTENTIONALLY LEFT BLANK]
9. DELIVERY
As promptly as practicable after each Purchase Period Termination Date of each Offering Period, the Company shall arrange the delivery to each participant, as appropriate, of a certificate representing the Shares purchased upon exercise of his or her option. Any payroll deductions accumulated in a participant's account which are not sufficient to purchase a full Share shall be retained in the participant's account for the subsequent Purchase Period, subject to earlier withdrawal by the participant as provided in Section 10 below. Any amounts left over in a participant's account after an Offering Termination Date (or upon a withdrawal by a participant or upon a participant purchasing the maximum dollar amount or number of shares hereunder) shall be returned to the participant.
10. VOLUNTARY WITHDRAWAL; TERMINATION OF EMPLOYMENT
10.1. A participant may withdraw all but not less than all of the Contributions credited to his or her account under the Plan at any time prior to each Purchase Period Termination Date by giving written notice to the Company. All of the participant's Contributions credited to his or her account will be paid to him or her promptly after receipt of his or her notice of withdrawal and his or her option for the current Purchase Period will be automatically terminated, and no further Contributions for the purchase of Shares will be made (or will be permitted to be made) during the Offering Period.
10.2. Upon termination of the participant's Continuous Status as an Employee prior to a Purchase Period Termination Date of an Offering Period for any reason, including retirement or death, the Contributions credited to his or her account will be returned to him or her or, in the case of his or her death, to the person or persons entitled thereto under Section 14, and his or her option will be automatically terminated.
10.3. In the event an Employee fails to remain in Continuous Status as an Employee of the Company for at least twenty (20) hours per week during the Offering Period in which the employee is a participant, he or she will be deemed to have elected to withdraw from the Plan and the Contributions credited to his or her account and remaining there will be returned to him or her and his or her option terminated.
10.4. A participant's withdrawal during an Offering Period will not have any effect upon his or her eligibility to participate in a succeeding Offering Period or in any similar plan which may hereafter be adopted by the Company.
11. INTEREST
No interest shall accrue on the Contributions of a participant in the Plan.
12. STOCK
12.1. Subject to adjustment as provided in Section 18, the maximum number of Shares which shall be made available for sale under the Plan shall be 200,000 Shares. If the Board determines that, on a given Purchase Period Termination Date, the number of shares with respect to which options are to be exercised may exceed (i) the number of shares of Common Stock that were available for sale under the Plan on the Purchase Period Commencement Date, or (ii) the number of shares available for sale under the Plan on such Purchase Period Termination Date, then the Company shall make a pro rata allocation of the Shares available for purchase on such Purchase Period Termination Date in as uniform a manner as shall be practicable and as it shall determine in its sole discretion to be equitable among all participants exercising options to purchase Common Stock on such Purchase Period Termination Date. The Company shall make pro rata allocation of the Shares available on the Purchase Period Commencement Date of the applicable Purchase Period pursuant to the preceding sentence, notwithstanding any authorization of additional Shares for issuance under the Plan by the Company's stockholders subsequent to such Purchase Period Commencement Date.
12.2. The participant shall have no interest or voting right in Shares covered by his or her option until such option has been exercised.
12.3. Shares to be delivered to a participant under the Plan will be registered in the name of the participant or in the name of the participant and his or her spouse, as directed by the participant.
13. ADMINISTRATION
The Board, or a committee named by the Board, shall supervise and administer the Plan and shall have full power to adopt, amend and rescind any rules deemed desirable and appropriate for the administration of the Plan and not inconsistent with the Plan, to construe and interpret the Plan, and to make all other determinations necessary or advisable for the administration of the
Plan. The Board's determinations made in good faith on matters referred to in this Plan shall be final, binding and conclusive on all persons having or claiming any interest under this Plan.
14. DESIGNATION OF BENEFICIARY
14.1. A participant may file a written designation of a beneficiary who is to receive any Shares and cash, if any, from the participant's account under the Plan in the event of such participant's death subsequent to the end of a Purchase Period but prior to delivery to him or her of such Shares and cash. Any such beneficiary shall also be entitled to receive any cash from the participant's account under the Plan in the event of such participant's death during a Purchase Period.
14.2. Such designation of beneficiary may be changed by the participant at any time by written notice. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant's death, the Company shall deliver such Shares and/or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company), the Company, in its discretion, may deliver such Shares and/or cash to the spouse or to any one or more dependents or relatives of the participant, or if no spouse, dependent or relative is known to the Company, then to such other person as the Company may designate.
15. TRANSFERABILITY OF OPTIONS AND SHARES
Neither Contributions credited to a participant's account nor any rights with regard to the exercise of an option or to receive Shares under the Plan may be assigned, transferred, pledged or otherwise disposed of in any way (other than by will, the laws of descent and distribution, or as provided in Section 14) by the participant. Any such attempt at assignment, transfer, pledge or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10. In addition, if the Board has so announced to Employees at least five (5) days prior to the scheduled beginning of the next Purchase Period, any Shares acquired on the Purchase Period Termination Date of such Purchase Period may be subject to restrictions specified by the Board on the transfer of such Shares. Any participant selling or transferring any or all of his or her Shares purchased pursuant to the Plan must provide written notice of such sale or transfer to the Company within five business days after the date of sale or transfer. Such notice to the Company shall include the gross sales price, if any, the Purchase Period during which the Shares being sold were purchased by the participant, the number of Shares being sold or transferred and the date of sale or transfer.
16. USE OF FUNDS
All Contributions received or held by the Company under the Plan may be used by the Company for any corporate purpose, and the Company shall not be obligated to segregate such Contributions from its other assets.
17. REPORTS
Individual accounts will be maintained for each participant in the Plan. Statements of account will be given to participating Employees at least annually, which statements will set forth the amounts of Contributions, the per Share Purchase Price, the number of Shares purchased and the remaining cash balance, if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION; CORPORATE TRANSACTIONS
18.1. Adjustment. All of the share numbers set forth in the Plan reflect the capital structure of the Company immediately after the closing of the initial public offering of the Company's Common Stock. Subject to any required action by the stockholders of the Company, the number of shares covered by each option under the Plan which has not yet been exercised and the number of Shares which have been authorized for issuance under the Plan but have not yet been placed under option (collectively, the "Reserves"), as well as the maximum number of shares of Common Stock which may be purchased by a participant in an Offering Period, the number of shares of Common Stock set forth in Section 12.1 above, and the price per Share of Common Stock covered by each option under the Plan which has not yet been exercised, shall be proportionately adjusted for any increase or decrease in the number of the Company's issued Shares resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the Common Stock (including any such change in the number of Shares of Common Stock effected in connection with a change in domicile of the Company), or any other increase or decrease in the number of Shares effected without receipt of consideration by the Company; provided however that conversion of any convertible securities of the Company shall not be deemed to have been "effected without receipt of consideration." Such adjustment shall be made by the Board, whose determination in that respect shall be final, binding and conclusive.
18.2. Corporate Transactions. In the event of a dissolution or liquidation of the Company, the Offering Period then in progress will terminate immediately prior to the consummation of such action, unless otherwise provided by the Board. In the event of a Corporate Transaction, each option outstanding under the Plan shall be assumed or an equivalent option shall be substituted by the successor corporation or a parent or Subsidiary of such successor corporation. In the event that the successor corporation refuses to assume or substitute for outstanding options, the Offering Period then in progress shall be shortened and a new Offering Termination Date shall be set (the "New Offering Termination Date"), as of which date the Offering Period then in progress will terminate. The New Offering Termination Date shall be on or before the date of consummation of the transaction and the Board shall notify each participant in writing, at least ten (10) days prior to the New Offering Termination Date, that the Offering Termination Date for his or her option has been changed to the New Offering Termination Date and that his or her option will be exercised automatically on the New Offering Termination Date, unless prior to such date he or she has withdrawn from the Offering Period as provided in Section 10. For purposes of this Section 18, an option granted under the Plan shall be deemed to be assumed, without limitation, if, at the time of issuance of the stock or other consideration upon a Corporate Transaction, each holder of an option under the Plan would be entitled to receive upon exercise of the option the same number and kind of shares of stock or the same amount of property, cash or securities as such holder would have been entitled to receive upon the occurrence of the transaction if the holder had been, immediately prior to the transaction, the holder of the number of Shares of Common Stock covered by the option at such time (after giving effect to any adjustments in the number of Shares covered by the option as provided for in this Section 18); provided however that if the consideration received in the transaction is not solely common stock of the successor corporation or its parent (as defined in Section 424(e) of the Code), the Board may, with the consent of the successor corporation, provide for the consideration to be received upon exercise of the option to be solely common stock of the successor corporation or its parent equal in fair market value to the per Share consideration received by holders of Common Stock in the transaction.
The Board may, if it so determines in the exercise of its sole discretion, also make provision for adjusting the Reserves, as well as the price per Share of Common Stock covered by each outstanding option, in the event that the Company effects one or more reorganizations, recapitalizations, rights offerings or other increases or reductions of Shares of its outstanding Common Stock, and in the event of the Company's being consolidated with or merged into any other corporation.
19. AMENDMENT OR TERMINATION
19.1. The Board may at any time and for any reason terminate or amend the Plan. Except as provided in Section 18, no termination of the Plan may affect options previously granted, provided that the Plan or an Offering Period may be terminated by the Board on a Offering Period Termination Date or by the Board's setting a new Offering Period Termination Date with respect to an Offering Period then in progress if the Board determines that termination of the Plan and/or any Offering Period is in the best interests of the Company and its stockholders or if continuation of the Plan and/or a Purchase Period or an Offering Period would cause the Company to incur adverse accounting charges as a result of the Plan. Except as provided in Section 18 and in this Section 19, no amendment to the Plan shall make any change in any option previously granted which adversely affects the rights of any participant.
19.2. In addition to the foregoing, without stockholder consent and without regard to whether any participant rights may be considered to have been adversely affected, the Board (or its committee) shall be entitled to change the Offering Periods, limit the frequency and/or number of changes in the amount withheld during an Offering Period, establish the exchange ratio applicable to amounts withheld in a currency other than U.S. dollars, permit payroll withholding in excess of the amount designated by a participant in order to adjust for delays or mistakes in the Company's processing of properly completed withholding elections, establish reasonable waiting and adjustment periods and/or accounting and crediting procedures to ensure that amounts applied toward the purchase of Common Stock for each participant properly correspond with amounts withheld from the participant's Compensation, and establish such other limitations or procedures as the Board (or its committee) determines in its sole discretion advisable which are consistent with the Plan.
20. NOTICES
Any notice, demand, request or other communication hereunder to any party shall be deemed to be sufficient if contained in a written instrument delivered in person or duly sent by first class registered, certified or overnight mail, postage prepaid, or telecopied with a confirmation copy by regular, certified or overnight mail, addressed or telecopied, as the case may be, (i) if to the recipient of an Award, at his or her residence address last filed with the Company and (ii) if to the Company, at its principal place of business, addressed to the attention of its Chief Executive Officer, or to such other address or telecopier number, as the case may be, as the addressee may have designated by notice to the addressor. All such notices, requests, demands and other communications shall be deemed to have been received: (i) in the case of personal delivery, on the date of such delivery; (ii) in the case of mailing, when received by the addressee; and (iii) in the case of facsimile transmission, when confirmed by facsimile machine report connection with the Plan shall be deemed to have been duly given when received in the form specified by the Company at the location, or by the person, designated by the Company for the receipt thereof.
21. CONDITIONS TO ISSUANCE OF SHARES
Shares shall not be issued with respect to an option unless the exercise of such option and the issuance and delivery of such Shares pursuant thereto shall comply with all applicable provisions of law, domestic or foreign, including, without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder, applicable state securities laws and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may require the person exercising such option to represent and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned applicable provisions of law.
22. TERM OF PLAN; EFFECTIVE DATE
The Plan shall become effective immediately after the closing of the initial public offering of the Company's Common Stock. It shall continue in effect for a term of ten (10) years unless sooner terminated under Section 19.
FORM OF SUBSCRIPTION AGREEMENT
AMICUS THERAPEUTICS, INC.
2007 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
New Election: ____
Change of Election: ___
1. I, __________________, hereby elect to participate in the Amicus Therapeutics, Inc. 2007 Employee Stock Purchase Plan (as amended, the "Plan") for the Offering Period ______________ ___, ______ to ______________ ___, _____, and subscribe to purchase shares of the Company's Common Stock in accordance with this Subscription Agreement and the Plan.
2. I elect to have Contributions in the amount of _____% of my Compensation, as those terms are defined in the Plan, applied to this purchase. I understand that this amount must not be less than 1% and not more than 15% of my Compensation during the Offering Period. (Please note that no fractional percentages are permitted).
3. I hereby authorize payroll deductions from each paycheck during the Offering Period at the rate stated in Item 2 of this Subscription Agreement. I understand that all payroll deductions made by me shall be credited to my account under the Plan and that I may not make any additional payments into such account. I understand that all payments made by me shall be accumulated, without interest or earnings, for the purchase of shares of Common Stock at the applicable purchase price determined in accordance with the Plan. I further understand that, except as otherwise set forth in the Plan, shares will be purchased for me automatically on each Purchase Period Termination Date of each Purchase Period unless I otherwise withdraw from the Plan by giving written notice to the Company for such purpose.
4. I understand that I may discontinue at any time prior to the Offering Termination Date my participation in the Plan as provided in Section 10 of the Plan. I acknowledge that, unless I discontinue my participation in the Plan as provided in Section 10 of the Plan, my election will continue to be effective for each successive Offering Period.
5. I have received a copy of the complete Amicus Therapeutics, Inc. 2007 Employee Stock Purchase Plan. I understand that my participation in the Plan is in all respects subject to the terms of the Plan.
6. Shares purchased for me under the Plan should be issued in the name(s) of (name of employee or employee and spouse only):
7. In the event of my death, I hereby designate the following as my beneficiary(ies) to receive all payments and shares due to me under the Plan:
NAME: (Please print) _______________________________________ (First) (Middle) (Last) __________________________ _______________________________________ (Relationship) (Address) _______________________________________ |
8. I understand that if I dispose of any shares received by me pursuant to the Plan within 2 years after my Entry Date into the then current Offering Period (the first day of the first Purchase Period in the Offering Period during which I purchased such shares) or within 1 year after the applicable Purchase Period Termination Date (the last day of the Purchase Period during which I purchased such shares), I will be treated for federal income tax purposes as having received ordinary compensation income at the time of such disposition in an amount equal to the excess of the fair market value of the shares on the Purchase Period Termination Date over the price which I paid for the shares, regardless of whether I disposed of the shares at a price less than their fair market value at the Purchase Period Termination Date. The remainder of the gain or loss, if any, recognized on such disposition will be treated as capital gain or loss.
I hereby agree to notify the Company in writing within 30 days after the date of any such disposition, and I will make adequate provision for federal, state or other tax withholding obligations, if any, which arise upon the disposition of the Common Stock. The Company may, but will not be obligated to, withhold from my compensation the amount necessary to meet any applicable withholding obligation including any withholding necessary to make available to the Company any tax deductions or benefits attributable to the sale or early disposition of Common Stock by me.
9. If I dispose of such shares at any time after expiration of the 2-year and 1-year holding periods, I understand that I will be treated for federal income tax purposes as having received compensation income only to the extent of an amount equal to the lesser of (1) the excess of the fair market value of the shares at the time of such disposition over the purchase price which I paid for the shares under the option, or (2) 15% of the fair market value of the shares on my Entry Date for the current Offering Period. The remainder of the gain or loss, if any, recognized on such disposition will be treated as capital gain or loss.
I understand that this tax summary is only a summary and is subject to change. I further understand that I should consult a tax advisor concerning certain tax implications of the purchase and sale of stock under the Plan.
10. I hereby agree to be bound by the terms of the Plan. The effectiveness of this Subscription Agreement is dependent upon my eligibility to participate in the Plan.
SIGNATURE: _______________________________________
SOCIAL SECURITY #: _______________________________
DATE: ____________________________________________
FORM OF NOTICE OF WITHDRAWAL
AMICUS THERAPEUTICS, INC.
2007 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
I, _____________, hereby elect to withdraw my participation in the Amicus Therapeutics, Inc. 2007 Employee Stock Purchase Plan (the "Plan") for the Purchase Period that began on _________________, ________. This withdrawal covers all Contributions credited to my account following the Purchase Period Commencement Date and is effective on the date designated below.
I understand that all such Contributions credited to my account will be paid to me within ten (10) business days of receipt by the Company of this Notice of Withdrawal and that my option for the current Purchase Period will automatically terminate, and that no further Contributions for the purchase of shares can be made by me during the current Offering Period.
The undersigned further understands and agrees that he or she shall be eligible to participate in succeeding Offering Periods only by delivering to the Company a new Subscription Agreement.
Dated: _________________________ ______________________________________ Signature of Employee ______________________________________ Social Security Number |
[AMICUS THERAPEUTICS LOGO]
EXHIBIT 10.25
LETTER AGREEMENT
May 10, 2007
Bradley Campbell
16 Morris Drive
Princeton, NJ 08540
RE: SEVERANCE AND CHANGE IN CONTROL AGREEMENTS
Dear Bradley:
On behalf of Amicus Therapeutics, Inc., (the "Company"), this shall serve to confirm our agreement in the event Amicus terminates your employment without cause or in the event of a Change in Control, Sale or Merger of the Company. By accepting the terms of this Letter Agreement, you agree that the rights identified in this Letter Agreement contain the complete understanding between you and the Company related to Severance and Change in Control payments. The April 19, 2006 Offer of Employment Letter countersigned by you ("April 19, 2006 Offer Letter," attached hereto), shall otherwise remain in full force and effect and is hereby confirmed and ratified.
SEVERANCE PAY
In the event that your employment is terminated by the Company, except for
"Cause" as defined below, you will be eligible for a continuation of six (6)
months salary at the rate in effect at the time of termination following such
termination ("Severance Pay"). "Cause" means for any of the following reasons
(i) willful or deliberate misconduct by you that materially damages the company;
(ii) misappropriation of company assets; (iii) 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 CEO of the Company; provided that the
CEO has given you written notice of such disobedience or neglect and you have
failed to cure such disobedience or neglect within a period reasonable under the
circumstances. Payment of Severance by the Company will be subject to and
contingent
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upon your signing a waiver of rights releasing the Company from any and all further liability or responsibility.
CHANGE IN CONTROL
If there is a Change in Control Event and you resign for Good Reason or are
terminated without Cause within six months of such Change in Control Event, then
(i) you will be eligible to receive a continuation of twelve (12) months salary,
plus payment of a bonus payment equal to the bonus earned in the preceding year
and (ii) all unvested stock options will have their remaining vesting schedule
accelerated so that all stock options are fully vested.
"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. "Good Reason" means (a) a change in your position with the company or its successors that materially reduces your title, duties or level of responsibility; or (b) the relocation of the company or its successor greater than 50 miles away from the then current location of the company's principal offices.
Your right to receive accelerated vesting and salary continuation payments pursuant to the preceding two paragraphs will be subject to and contingent upon your signing a waiver of rights releasing the Company from any and all further liability or responsibility.
EMPLOYMENT "AT-WILL"
It is important that you understand that the Company does not guarantee employment for any specific period of time. You will continue to be employed on an "at-will" basis. This means that both the Company and you will have the right to terminate your employment at any time, for any reason, with or without prior notice or cause. Neither you nor the Company will have an express or implied contract limiting your right to resign or the Company's right to terminate your employment at any time, for any reason, with or without prior notice or cause. The "at-will" relationship will apply to you throughout your employment and cannot be changed except by an express individual written employment agreement signed by you and the Chief Executive Officer of the Company.
It is understood and agreed that this Letter Agreement constitutes the full agreement between you and the Company on the subjects of Severance and Change in Control payments. To indicate your acceptance of the terms and conditions set forth herein, please sign one copy of this Letter Agreement in the space indicated below and return it to the attention of Nicole Schaeffer, VP Human Resources & Leadership Development on or before May 14, 2007. By signing below, you agree that no other promises, express
or implied, have been made to you either verbally or in writing and that no further modifications to these terms and conditions will be effective except by a written agreement signed by the Chief Executive Officer of the Company and you and as authorized by the Company's Board of Directors.
Very truly yours,
/s/ John F. Crowley ------------------------------------ John F. Crowley President and Chief Executive Officer |
ACCEPTED AND AGREED:
By: /s/ Bradley Campbell Date: 5/10/07 ------------------------------- ------------------------------- Bradley Campbell |
[AMICUS THERAPEUTICS LOGO]
April 19, 2006
Mr. Bradley Campbell
63 Tanglewood Road
Newton, MA 02459
Dear Brad:
On behalf of Amicus Therapeutics, inc. (the "Company"), I am pleased to confirm our offer to you for the position of Sr. Director Business Development reporting to me. Your start date will be mutually agreed upon but no later then May 22, 2006.
Prior to the commencement of your employment you will be required to execute the Company's Confidentiality, Disclosure and Non-Competition Agreement. A copy of this agreement is attached. In addition, as a condition of employment Amicus requires a pre-employment drug screening.
In consideration for all your services to be rendered to the Company your annual base salary will be $175,000, to be paid bi-weekly in accordance with the Company's payroll practices. Upon the completion of mutually agreed upon individual goals and objectives as well as the achievement of specific Company goals, you will be eligible to receive a year end bonus target of 20% of your base salary, prorated for your date of hire, minus customary deductions. Once you agree to join Amicus, payable with your first paycheck, you will receive a sign on bonus of $20,000 minus customary deductions.
Upon approval by the Board of Directors, you will receive an incentive stock option to purchase 100,000 shares of the Company's common stock, par value $.01 per share (the "Common Stock") pursuant to a stock option agreement in form and substance acceptable to the Company. The options will become exercisable over a four-year period as follows: 25% on the first anniversary of the date of grant, and the remaining 75% in equal monthly increments thereafter. The exercise price of the options will be the fair market value of the Company's common stock on the date of grant. Shares issuable upon exercise of each option will be subject to certain transfer restrictions including the right of first refusal. Additionally, exercise of the options will be governed in accordance with the provisions of the Company's stock option plan.
You will be eligible to participate in the Company's health benefits program and are eligible to participate in the Company's 401(k) as well as any other employee benefit plan(s) that are generally made available by the Company to its employees from time to time when and as the Company may make them available. You will be eligible for paid Company holidays as outlined in our Holiday Policy and you will be eligible for twenty (20) days paid vacation, three weeks during the year and one between Christmas and New Years. Vacation accrues on a monthly basis. Because the Company expects to
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Bradley Campbell
April 19, 2O06
Page #2 of 3
regularly review its benefit programs to keep them up to date and competitive, these programs are subject to periodic adjustments so that certain features may be added, modified or deleted over time.
Given that you currently reside over 50 miles from our location in Cranbury NJ, you will be eligible to receive our "Homeowners Relocation Program". The details of which are enclosed. You must complete your entire move within 12 months of your date of hire. Should you voluntarily resign your employment within 12 months of your date of hire, you will owe the company the appropriate prorated portion of this relocation.
It is important that you understand that the Company does not guarantee employment for any specific period of time. You will be employed on an "at-will" basis. This means that both the Company and you will have the right to terminate your employment at any time, for any reason, with or without prior notice or cause. Neither you nor the Company will have any express or implied contract limiting your right to resign, or the Company's right to terminate your employment, at any time, for any reason, with or without prior notice or cause.
In accordance with the Immigration and Naturalization Control Act, all new employees must provide documentation that they have the legal right to work in the United States. A copy of Form I-9 and a list of the acceptable documents confirming your right to work in the United States are also attached for your convenience.
To indicate your acceptance of our offer, please sign one copy of this letter in the space indicated below and return it to the attention of Nicole Schaeffer, Vice President of Human Resources & Leadership Development by April 28, 2006. Acceptance of this offer constitutes your agreement with all of the above terms and conditions of employment with Amicus Therapeutics, Inc., and constitutes agreement to conform to Amicus Therapeutics, Inc. rules and procedures. By signing below, you agree that no other promises, express or implied, have been made to you either verbally or in writing and that no further modifications to these terms and conditions will be effective except by a written agreement signed by the Chief Executive Officer of the Company and you.
The formality of this letter notwithstanding, I extend my personal best wishes and sincere pleasure that you are joining our team. I look forward to working with you.
Sincerely,
/s/ Greg Licholai -------------------------------------------- Dr. Greg Licholai VP Medical Affairs and Corporate Development |
Bradley Campbell
April 19, 2006
Page #3 of 3
I accept the offer of employment under the terms and conditions stated above. No other promises, express or implied, have been made to me either verbally or in writing.
By: /s/ Bradley Campbell Date: 4/26/06 ------------------------------- ------------------------------- Bradley Campbell |