EXECUTION COPY EMPLOYMENT AGREEMENT
EXHIBIT 10.1
EXECUTION COPY
2008 AMENDED AND RESTATED
THIS 2008 AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Amended Agreement”), dated as of
December 30, 2008, between AMICUS THERAPEUTICS, INC., a Delaware corporation having an office at 0
Xxxxx Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the “Company”), and XXXX X. XXXXXXX, an individual
residing at 00 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 (“Employee”).
PREAMBLE
WHEREAS, effective January 6, 2005, the Company and the Employee entered into that certain
Employment Agreement (the “Original Agreement”);
WHEREAS, effective April 28, 2006, the Company and the Employee entered into that certain
Employment Agreement (the “2006 Amended Agreement”), and, effective February 5, 2008, the Company
and the Employee amended the 2006 Amended Agreement, and this Amended Agreement amends and restates
the Original Agreement and the 2006 Amended Agreement, as amended;
WHEREAS, since January 17, 2005, the Employee has served as the Chief Executive Officer of the
Company, and the Company desires to continue the employment of Employee in the capacities of
President and Chief Executive Officer and Employee desires to continue such service, all pursuant
to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good
and valuable consideration, the sufficiency and receipt whereof is hereby acknowledged, the parties
agree as follows:
Section 1. Definitions. Unless otherwise defined herein, the following terms shall
have the following respective meanings:
“Cause” means for any of the following reasons: (i) willful or deliberate misconduct
by Employee that materially damages the Company; (ii) misappropriation of Company assets; (in)
Employee’s conviction of or a plea of guilty or “no contest” to, a felony; or (iv) any willful
disobedience of the lawful and unambiguous instructions of the Board of Directors of the Company;
provided that the Board of Directors has given Employee thirty (30) days written notice of such
disobedience or neglect and Employee has failed to cure such cause.
“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.
“Common Stock” means the common stock of the Company; par value $.01 per share.
“Effective Date” means January 17, 2005.
“Good Reason” means (i) a material diminution in Employee’s authority, duties, or
responsibilities from those set forth in this Amended Agreement, or (ii) a material change in the
geographic location at which the Employee must perform the services, in each case without the
Employee’s consent. The Employee must provide the Company with notice of the Good Reason condition
within ninety (90) days of its initial existence, the Company shall have a period of thirty (30)
days within which it may remedy the condition and not be required to pay the severance payment, and
any Good Reason termination must occur within two (2) years of the initial existence of the Good
Reason condition.
Section 2. Employment.
Subject to the terms and conditions of this Amended Agreement, Employee is hereby employed by
the Company to serve as its President and Chief Executive Officer. Employee accepts such
employment, and agrees to discharge all of the duties normally associated with said positions, to
faithfully and to the best of his abilities perform such other services consistent with his
position as a senior executive officer as may from time to time be assigned to him by the Board of
Directors of the Company and to devote all of his business time, skill and attention to such
services. Notwithstanding the foregoing, however, Employee may serve on the boards of directors of
other companies, and in civic, cultural, philanthropic and professional organizations so long as
such service does not detract from the performance of Employee’s duties hereunder, such
determination to be made by the Board of Directors in its sole discretion. Employee may continue
service as an officer, U.S. Navy Reserve, and any periods of active duty service shall not result
in any reduction in compensation or benefits payable to Employee under Section 3 of this Amended
Agreement. At all times during which Employee remains President and Chief Executive Officer of the
Company, Employee shall serve as a member of the Company’s Board of Directors and, at the request
of the Company’s Board of Directors, as an officer or director of any Company affiliate, in each
case without additional remuneration therefor.
Section 3. Compensation and Benefits.
3.1 Base Salary. During the Employment Term (as defined in Section 5 hereof), the
Company shall pay Employee a salary at the annual rate of $425,000 or such greater amount as the
Company’s Board of Directors may from time to time establish pursuant to the terms hereof (the
“Base Salary”). Such Base Salary shall be reviewed annually and may be
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increased, but not decreased, by the Board of Directors of the Company in its sole discretion.
The Base Salary shall be payable in accordance with the Company’s customary payroll practices for
its senior management personnel.
3.2 Bonus. During the Employment Term, Employee shall be eligible to participate in
the Company’s bonus programs in effect with respect to senior management personnel. Employee shall
be eligible to receive an annual target bonus of up to 50% of the Base Salary in cash (the
“Bonus”). Any Bonus payment to which Employee becomes entitled hereunder shall be paid to Employee
in a lump sum on or before the 15th day of the third month following the end of the calendar year
in which the Bonus was earned.
3.3 Benefits
(a) Benefit Plans. During the Employment Term, Employee may participate, on the same
basis and subject to the same qualifications as other senior management personnel of the Company,
in any benefit plans (including health and medical insurance of Employee, Employee’s spouse and
Employee’s dependents) and policies in effect with respect to senior management personnel of the
Company, including any stock option plan.
(b) Reimbursement of Expenses. During the Employment Term, the Company shall pay or
promptly reimburse Employee, upon submission of proper invoices in accordance with the Company’s
normal procedures, for all reasonable out-of-pocket business, entertainment and travel expenses
incurred by Employee in the performance of his duties hereunder. Any taxable reimbursement of
business or other expenses as specified under this Amended Agreement shall be subject to the
following conditions: (1) the expenses eligible for reimbursement in one taxable year shall not
affect the expenses eligible for reimbursement in any other taxable year; (2) the reimbursement of
an eligible expense shall be made no later than the end of the calendar year after the year in
which such expense was incurred; and (3) the right to reimbursement shall not be subject to
liquidation or exchange for another benefit.
(c) Medical Expenses. Effective May 1, 2006, the Company shall secure and maintain
during the Employment Term, at the expense of the Company, an Executive Medical Reimbursement
Contract with First Rehabilitation Life Insurance Company of America, or a plan with another
insurer providing substantially similar benefits, covering Employee, Employee’s spouse and
Employee’s dependents (the “Health Plan Contract”). The Company shall pay to Employee a quarterly
amount equal to $55,000 in cash to cover all out-of-pocket medical expenses incurred or accrued by
Employee, Employee’s spouse and Employee’s dependents from and after January 1, 2008. This amount
shall be paid to Employee on the first day of each calendar quarter with respect to that calendar
quarter. With respect to this amount, the Company shall make corresponding gross-up payments on
behalf of Employee on a quarterly basis to the appropriate federal and state taxing authorities (or
shall otherwise appropriately withhold and reserve such payments on behalf of Employee so as to
provide for the direct payment to the appropriate taxing authorities at the required time). The
benefits and payments
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set forth in this paragraph shall continue for a period of twelve (12) months following
Employee’s death or termination of employment by reason of Disability as provided in Section 5.5
hereof, and shall be payable to Employee or Employee’s estate, as applicable, on the first day of
each calendar quarter with respect to that calendar quarter.
(d) Vacation. During the Employment Term, Employee shall be entitled to up to four
(4) weeks of vacation in accordance with the policies of the Company applicable to senior
management personnel from time to time.
(e) Withholding. The Company shall be entitled to withhold from amounts payable or
benefits accorded to Employee under this Agreement all federal, state and local income, employment
and other taxes, as and in such amounts as may be required by applicable law.
Section 4. Employment Term. The term of this Agreement (the “Employment Term”) shall
end on the close of business on the first anniversary of the date of this Amended Agreement. The
Employment Term shall be automatically extended for additional one-year periods (each a “Renewal
Period”) unless, at least sixty (60) days prior to the end of the expiration of the Employment
Term, Employee notifies the Board of Directors or the Board of Directors notifies Employee that the
notifying party does not wish to extend such Employment Term. Employee’s employment hereunder
shall be coterminous with the Employment Term, unless sooner terminated as provided in Section 5.
Section 5. Termination; Severance Benefits.
5.1 Generally. Either the Board of Directors of the Company or Employee may terminate
Employee’s employment hereunder, for any reason, at any time prior to the expiration of the
Employment Term, upon sixty (60) days prior written notice to the other party. Upon termination of
Employee’s employment hereunder for any reason, Employee shall be deemed simultaneously to have
resigned as a member of the Board of Directors of the Company and from any other position or office
he may at the time hold with the Company or any of its affiliates.
5.2 Termination by Employee.
(a) No Reason. If, prior to the expiration of the Employment Term, Employee
voluntarily resigns from his employment, other than for Good Reason, Employee shall (i) receive no
further Base Salary or Bonus hereunder, other than accrued and unpaid Base Salary through and
including the effective date of termination of his employment with the Company (the “Accrued
Compensation”) and (ii) cease to be covered under or be permitted to participate in or receive any
of the benefits described in Section 3.3 hereof (provided, however, that Employee
shall be entitled to receive any benefits under Section 3.3 hereof to the extent such benefits have
accrued through and including the effective date of termination of his employment
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with the Company, such amount being payable in a lump sum on the effective date of the
termination of Employee’s employment with the Company).
(b) Good Reason. If, prior to the expiration of the Employment Term, a condition
occurs which constitutes Good Reason and after Employee has complied with the applicable notice
period and the Company has failed to remedy such condition, Employee actually resigns (all as
described in detail in the definition of “Good Reason” in Section 1), Employee shall be entitled to
receive, subject to Section 5.7(b) below, an amount equal to Employee’s then current Base Salary,
payable over eighteen (18) months in accordance with the Company’s customary payroll practices then
in effect for its senior management personnel (the “Severance Payment”), plus an amount equal to
1.5 (one and one-half) times the target Bonus for the year in which such termination occurs (such
amount being payable in a lump sum on the effective date of the termination of Employee’s
employment with the Company), plus any of the benefits under Section 3.3 hereof if and to
the extent such benefits have accrued through and including such effective date of termination
(such accrued benefits being payable in a lump sum on such effective date of the termination). In
addition, the vesting of the Options shall accelerate with respect to the twelve (12) month period
beginning on the date of Employee’s effective date of termination, and Employee shall continue to
be covered under or be permitted to participate in or receive the benefits described in paragraphs
(a) and (c) of Section 3.3 hereof for the period of time during which the Severance Payment is
payable to Employee.
5.3 Termination by the Company.
(a) Without Cause. If, prior to the expiration of the Employment Term, the Company
terminates Employee’s employment hereunder without Cause or if the Board of Directors of the
Company gives written notice pursuant to Section 4 hereof notifying Employee that the Board of
Directors does not wish to extend the Employment Term, then Employee shall be entitled to receive
the Severance Payment commencing upon the effective date of the termination of Employee’s
employment with the Company, shall be entitled to receive (in a lump sum on such effective date of
termination) benefits under Section 3.3(b) hereof to the extent such benefits have accrued through
and including such effective date of termination, shall continue to be covered under or be
permitted to participate in or receive the benefits described in paragraphs (a) and (c) of Section
3.3 hereof for the period of time during which the Severance Payment is payable to Employee (any
amounts to be paid thereunder to be payable to Employee or Employee’s estate, as applicable, on the
first day of each calendar quarter with respect to that calendar quarter), and shall be paid (in a
lump sum on such effective date of termination) an amount equal to 1.5 (one and one-half) times the
target Bonus for the year in which such termination occurs; all such payments under this section
shall be made subject to Section 5.7(b) below. In addition, the vesting of the Options shall
accelerate with respect to the twelve (12) month period beginning on the date of Employee’s
effective date of termination..
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(b) For Cause. If, prior to the expiration of the Employment Term, the Company
terminates Employee’s employment hereunder for Cause, Employee shall (i) receive no further Base
Salary or Bonus hereunder, other than Accrued Compensation which shall be payable on the effective
date of the termination of Employee’s employment with the Company and (ii) cease to be covered
under or be permitted to participate in or receive any of the benefits described in Section 3.3
hereof; provided, however, that (A) Employee shall be entitled to receive (in a
lump sum on such effective date of termination) any benefits under Section 3.3 hereof to the extent
such benefits have accrued through and including such effective date of termination, subject to
Section 5.7(b) below and (B) if Employee is terminated for Cause hereunder solely as a result of
being convicted of a felony, which conviction is ultimately reversed on appeal or pardoned,
Employee shall be deemed to have been terminated without Cause as of the date of such termination
for Cause.
5.4 Termination in Connection with a Change in Control Event. If, prior to the
expiration of the Employment Term, (i) a condition occurs which constitutes Good Reason and after
Employee has complied with the applicable notice period and the Company has failed to remedy such
condition, Employee actually resigns (all as described in detail in the definition of “Good Reason”
in Section 1), (ii) the Company terminates Employee’s employment hereunder without Cause, or (iii)
if the Board of Directors of the Company gives written notice pursuant to Section 4 hereof
notifying Employee that the Board of Directors does not wish to extend the Employment Term, in each
case within: (a) three (3) months prior to, or (b) twelve (12) months following, the occurrence of
a Change in Control Event, Employee shall be entitled to receive an amount equal to two (2.0) times
Employee’s then current Base Salary, payable over twenty-four (24) months, commencing upon the
effective date of the termination of Employee’s employment with the Company, in accordance with the
Company’s customary payroll practices for its senior management personnel (the “Change in Control
Severance Payment”), plus an amount equal to two (2.0) times the target Bonus for the year in which
such resignation or termination occurs (such amount being payable in a lump sum on such effective
date of termination), plus any of the benefits under Section 3.3 hereof if and to the
extent such benefits have accrued through and including such effective date of termination (such
accrued benefits being payable in a lump sum on such effective date of the termination). In
addition, the Options shall vest in full, any vesting requirements for any restricted stock grants
shall lapse and Employee shall continue to be covered under or be permitted to participate in or
receive the benefits described in paragraphs (a) and (c) of Section 3.3 hereof for the period of
time during which the Change in Control Severance Payment is payable to Employee (any amounts to be
paid thereunder to be payable to Employee or Employee’s estate, as applicable, on the first day of
each calendar quarter with respect to that calendar quarter). All payments made under this section
shall be subject to Section 5.7(b) below.
5.5 Termination upon Death or Disability. Employee’s employment hereunder shall
terminate upon death of Employee. The Company may terminate Employee’s employment hereunder in the
event Employee is disabled and such disability continues for more than 180 days. “Disability”
shall be defined as the inability of Employee to render the services
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required of him, with or without a reasonable accommodation, under this Amended Agreement as a
result of physical or mental incapacity. In the event of death or termination by the Company due
to disability of Employee, the Company shall continue to pay to Employee or Employee’s estate, the
compensation required under Section 3, for a period of twelve (12) months (any amounts to be paid
thereunder to be payable to Employee or Employee’s estate, as applicable, on the first day of each
calendar quarter with respect to that calendar quarter, except reimbursement of expenses pursuant
to Section 3.3(b) which reimbursements shall be payable in accordance with such Section 3.3(b)).
5.6 Release Required. In order to receive the Severance Payment or the Change in
Control Severance Payment, and other benefits under Section 5 hereof, including the acceleration of
vesting of the Options, Employee must execute and deliver to the Company a release, the form and
substance of which are acceptable to the Company. Any amounts otherwise payable on account of the
Employee’s termination of employment under this Amended Agreement which (i) are conditioned in any
part on a release of claims and (ii) would otherwise be paid (assuming the release is given) prior
to the last day on which the release could become irrevocable assuming the Employee’s latest
possible execution and delivery of the release (such last day, the “Release Deadline”) shall be
paid, if ever, only on the Release Deadline, even if the Employee’s release becomes irrevocable
before that date. The Company may elect to make such payment prior to the Release Deadline,
however, provided that the release is given by the Employee prior to such date, and further
provided that if the Release Deadline is more than thirty (30) days following the date on which the
Employee has given the release, then payment may be made no earlier than thirty (30) days prior to
the Release Deadline.
5.7 Section 409A.
(a) Purpose. This section is intended to help ensure that compensation paid or
delivered to the Employee pursuant to this Amended Agreement either is paid in compliance with, or
is exempt from, Section 409A of the Internal Revenue Code of 1986, as amended and the rules and
regulations promulgated thereunder (collectively, “Section 409A”). However, the Company does not
warrant to the Employee that all compensation paid or delivered to him for his services will be
exempt from, or paid in compliance with, Section 409A.
(b) Amounts Payable On Account of Termination. For the purposes of determining when
amounts otherwise payable on account of the Employee’s termination of employment under this Amended
Agreement will be paid, which amounts become due because of his termination of employment,
“termination of employment” or words of similar import, as used in this Amended Agreement, shall be
construed as the date that the Employee first incurs a “separation from service” for purposes of
Section 409A on or following termination of employment. Furthermore, if the Employee is a
“specified employee” of a public company as determined pursuant to Section 409A as of his
termination of employment, any amounts payable on account of his termination of employment which
constitute deferred compensation within the meaning of Section 409A and which are otherwise payable
during the first six months following
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the Employee’s termination (or prior to his death after termination) shall be paid to the
Employee in a cash lump-sum on the earlier of (1) the date of his death and (2) the first business
day of the seventh calendar month immediately following the month in which his termination occurs.
(c) Interpretative Rules. In applying Section 409A to amounts paid pursuant to this
Agreement, any right to a series of installment payments under this Agreement shall be treated as a
right to a series of separate payments.
(d) Deferred Compensation Taxes. Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit under this Agreement received or to be received
by the Employee (the “Payment”) is determined to be subject (in whole or part) to the
penalties imposed by Section 409A of the Code (the “Additional Taxes”), then the Employee shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after
payment by the Employee of the Additional Taxes, the Employee retains an amount equal to the
Payment net of any applicable taxes and withholdings other than Additional Taxes. All
determinations required to be made under this provision , including whether and when a Gross-Up
Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by the Company’s accountants or such other certified
public accounting firm designated by the Employee and reasonably acceptable to the Company. Any
certified public accounting firm chosen by the Employee shall provide detailed supporting
calculations both to the Company and the Employee. Any Gross-Up Payment due under this paragraph
shall be paid to the Employee no later than December 31 of the calendar year following the calendar
year in which the Employee remits the Additional Taxes to the applicable authorities.
Section 6. Federal Excise Tax.
6.1 General Rule. Employee’s payments and benefits under this Agreement and all other
arrangements or programs related thereto shall not, in the aggregate, exceed the maximum amount
that may be paid to Employee without triggering golden parachute penalties under Section 280G of
the Code, and the provisions related thereto with respect to such payments. If Employee’s benefits
must be cut back to avoid triggering such penalties, Employee’s benefits will be cut back in the
priority order Employee designates or, if Employee fails to promptly designate an order, the
priority order designated by the Company. If an amount in excess of the limit set forth in this
Section is paid to Employee, Employee must repay the excess amount to the Company upon demand, with
interest at the rate provided in Code Section 1274(b)(2)(B). Employee and the Company agree to
cooperate with each other reasonably in connection with any administrative or judicial proceedings
concerning the existence or amount of golden parachute penalties on payments or benefits Employee
receives.
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6.2 Exception. Section 6.1 shall apply only if it increases the net amount Employee
would realize from payments and benefits subject to Section 6.1, after payment of income and excise
taxes by Employee on such payments and benefits.
6.3 Determinations. The determination of whether the golden parachute penalties under
Code Section 280G and the provisions related thereto shall be made by counsel chosen by Employee
and reasonably acceptable to the Company. All other determinations needed to apply this Section 6
shall be made in good faith by the Company’s independent auditors.
Section 7. General.
7.1 Confidentiality and Non-Competition Agreement. Employee and the Company hereby
ratify and re-affirm that certain Confidentiality and Non-Competition Agreement dated January 26,
2005 (the “Confidentiality Agreement”).
7.2 No Conflict. Employee represents and warrants that he has not entered, nor will
he enter, into any other agreements that restrict his ability to fulfill his obligations under this
Agreement and the Confidentiality Agreement.
7.3 Governing Law. This Agreement shall be construed, interpreted and governed by the
laws of the State of New Jersey, without regard to the conflicts of law rules thereof.
7.4 Binding Effect. This Agreement shall extend to and be binding upon Employee, his
legal representatives, heirs and distributees and upon the Company, its successors and assigns
regardless of any change in the business structure of the Company.
7.5 Assignment. Neither this Agreement nor any of the rights or obligations hereunder
shall be assigned or delegated by any party without the prior written consent of the other party.
7.6 Entire Agreement. Except for any stock option or stock award agreements between
the parties, this Agreement contains the entire agreement of the parties with respect to the
subject matter hereof. No waiver, modification or change of any provision of this Agreement shall
be valid unless in writing and signed by both parties.
7.7 Waiver. The waiver of any breach of any duty, term or condition of this Agreement
shall not be deemed to constitute a waiver of any preceding or succeeding breach of the same or any
other duty, term or condition of this Agreement.
7.8 Severability. If any provision of this Agreement shall be unenforceable in any
jurisdiction in accordance with its terms, the provision shall be enforceable to the fullest extent
permitted in that jurisdiction and shall continue to be enforceable in accordance with its
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terms in any other jurisdiction and the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
7.9 Conflicting Agreements. In the event of a conflict between this Agreement and any
other agreement between Employee and the Company, the terms and provisions of this Agreement shall
control.
7.10 Resolution of Disputes. Any claim or controversy arising out of, or relating to,
this Agreement, other than with respect to the Confidentiality Agreement, between Employee and the
Company (or any officer, director, employee or agent of the Company), or the breach thereof, shall
be settled by arbitration administrated by the American Arbitration Association under its National
Rules for the Resolution of Employment Disputes. Such arbitration shall be held in New Jersey (or
in such other location as the Company may at the time be headquartered). The arbitration shall be
conducted before a three-member panel. Within fifteen (15) days after the commencement of
arbitration, each party shall select one person to act as arbitrator and the two selected shall
select a third arbitrator within ten (10) days of their appointment.
If the arbitrators selected by the parties are unable or fail to agree upon the third
arbitrator, the third arbitrator shall be selected by the American Arbitration Association and
shall be a member of the bar of the State of New Jersey actively engaged in the practice of
employment law for at least ten years. The arbitration panel shall apply the substantive laws of
the State of New Jersey in connection with the arbitration and the New Jersey Rules of Evidence
shall apply to all aspects of the arbitration. The award shall be made within thirty days of the
closing of the hearing. Judgment upon the award rendered by the arbitrators(s) may be entered by
any Court having jurisdiction thereof.
7.11 Notices. All notices pursuant to this Agreement shall be in writing and shall be
sent by prepaid certified mail, return receipt requested or by recognized air courier service
addressed as follows:
(i) If to the Company to:
Amicus Therapeutics, Inc.
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(ii) If to Employee to:
Xxxx X. Xxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
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or to such other addresses as may hereinafter be specified by notice in writing by either of the
parties, and shall be deemed given three (3) business days after the date so mailed or sent.
7.12 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall together constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date fist above
written.
| /s/ Xxxx X. Xxxxxxx | ||||
| XXXX X. XXXXXXX | ||||
| AMICUS THERAPEUTICS, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||
| Title: | Chairman of the Board | |||
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