Exhibit 10.20
AMICUS THERAPEUTICS, INC.
RESTRICTED SHARE AWARD AGREEMENT
THIS RESTRICTED SHARE AWARD AGREEMENT (the "Award Agreement") is dated this
8th day of March, 2007, by and between Amicus Therapeutics, Inc., a Delaware
corporation (the "Company"), and Xxxxx X. Xxxxxxx (the "Associate").
WHEREAS, on July 26, 2006, the Company and the Associate entered into that
certain offer letter (the "Offer Letter") in connection with Associate's
employment with the Company;
WHEREAS, among the terms set forth in the Offer Letter was an award (the
"Award") of 300,000 shares of common stock, $.01 par value (the "Common Stock")
under the Amicus Therapeutics, Inc. 2002 Equity Incentive Plan (the "Plan"),
effective upon the commencement of Associate's employment with the Company; and
NOW, THEREFORE, in consideration of the foregoing and the mutual
obligations set forth herein, the Company and the Associate agree as follows:
1. Award. The Award to the Associate of restricted shares ("Restricted
Shares") of Common Stock is subject to the terms and conditions set forth in
this Restricted Share Award Agreement ("Award Agreement" or "Award"), and in the
Plan. By executing this Award Agreement, the Associate agrees to be bound by all
the Plan's terms and conditions as if they had been set forth specifically
herein. Capitalized terms used but not otherwise defined herein are defined in
the Plan.
2. Specific Terms. The Associate's Award of Restricted Shares have the
following terms:
Number of Restricted Shares
Awarded: 300,000
Award Date: October 2, 2006
Vesting: The Restricted Shares shall vest as
follows:
75,000 shares shall vest on the first
anniversary of the Award Date (the
"Anniversary Date").
6,250 shares shall vest monthly, beginning
on the first day of each of the thirty-six
(36) calendar months following the
Anniversary Date.
3. Issuance of Restricted Shares. The Company shall reflect the issuance
in the Associate's name of all the Restricted Shares subject to this Award.
Such Restricted Shares shall be held in the custody of the Company or its
designee for the Associate's account. The Restricted Shares shall be subject to
the restrictions set forth herein. Until applicable vesting restrictions lapse,
any certificates that the Associate receives for Restricted Shares will include
a legend stating that they are subject to the restrictions set forth in the
Plan and this Award Agreement.
4. Acceleration of Vesting of Restricted Shares.
a. Resignation for Good Reason after Change in Control Event. If,
prior to the expiration of the term of Associate's employment with the Company
(the "Employment Term") pursuant to the Offer Letter, but after the occurrence
of a Change in Control Event (as defined below), the Associate resigns for Good
Reason (as defined below) within six (6) months of such Change in Control
Event, the entire Award of Restricted Shares shall vest and immediately become
fully exercisable.
b. Termination by the Company without Cause. If, prior to the
expiration of the Employment Term, the Company terminates Associate's
employment without Cause (as defined below), then the Award shall vest with
respect to an additional six (6) months of vesting, measured from the date of
termination of employment.
c. Release. In order for the vesting of the Award to accelerate as
provided in this Section 4, Associate must execute and deliver to the Company a
release, the form and substance of which are acceptable to the Company.
d. Definitions. For purposes of this Section 4, the following
definitions shall have the meanings set forth below;
(i) "Cause" means for any of the following reasons: (i) willful
or deliberate misconduct by Associate that materially
damages the Company; (ii) misappropriation of Company
assets; (iii) Associate's conviction of, or a plea of guilty
or "no contest" to, a felony; or (iv) any willful
disobedience of the lawful and unambiguous instructions of
the Chief Executive Officer of the Company; provided that
the Chief Executive Officer has given Associate written
notice of such disobedience or neglect and Associate has
failed to cure such disobedience or neglect within a
period reasonable under the circumstances.
(ii) "Change in Control Event" means any of the following: (i)
any person or entity (except for a current stockholder)
becomes the beneficial owner of greater than 50% of the then
outstanding voting power of the Company; (ii) a merger or
consolidation with another entity where the voting
securities of the Company outstanding immediately before the
transaction constitute less than a majority of the voting
power of the voting securities of the
Company or the surviving entity outstanding immediately
after the transaction, or (iii) the sale or disposition of
all or substantially all of the Company's assets.
(iii) "Good Reason" means (i) a change in Associate's position
with the Company or its successor that materially reduces
Associate's title, duties or level of responsibility; or
(ii) the relocation of the Company or its successor greater
than 50 miles away from the then current location of the
Company's principal offices.
5. Forfeiture of Restricted Shares. In the event that the Associate is
no longer an employee of the Company, any unvested Restricted Shares (including
dividends paid thereon), shall be automatically forfeited (the "Forfeited
Shares") and returned to the Company for cancellation upon the effective day of
the end of the Associate's employment. "Employment" for the purposes of this
Agreement shall be defined in accordance with the provisions of Section Treas.
Reg. 1.421-7(h) or any successor regulations.
6. Stockholder Rights; Unvested Restricted Shares.
a. The Company will hold the Restricted Shares in escrow until
applicable vesting occurs, if ever. The Associate must deliver to the Company,
coincident with the execution and delivery of this Award Agreement, a stock
power, endorsed in blank, for each certificate issued and representing the
Restricted Shares to enable the Company to return and/or reissue such
certificates as provided in this Award Agreement.
b. If an event causes the Associate to forfeit any Restricted
Shares, the stock powers will be used to return the certificates for the
Forfeited Shares for cancellation. To the extent that a portion of a
certificate represents Forfeited Shares and shares which are not Forfeited
Shares, then the Company will reissue a certificate to the Associate for such
number of shares of Common Stock which do not represent Forfeited Shares and the
stock powers shall be effective such purpose.
c. Subject to this Award Agreement, as the owner of record of
the Restricted Shares, the Associate's name will be reflected as such on the
Company's books and records, and the Associate will be entitled to all
rights of a Company stockholder, including voting and dividend rights with
respect to the Restricted Shares; provided however, that dividends paid with
respect to those Restricted Shares, whether in cash or stock, that have not
vested at the time of the dividend payment shall themselves be subject to the
same restrictions, vesting and forfeiture conditions that apply to the
corresponding restricted Shares.
7. Transfer Restrictions. No Portion of the Restricted Shares may
be sold, transferred, assigned, pledged or otherwise encumbered or disposed of
by the Associate until such Restricted Shares have vested in accordance with
Section 1 hereof and then only in accordance with applicable securities laws and
any Company policy then in effect, should such policy then apply to the
Associate. The Company shall not be required (i) to transfer on its books any
Restricted Shares that have been sold or otherwise transferred in violation of
any provision
of this Award Agreement, or (ii) to treat as owner of such shares or to accord
the right to vote or pay dividends to any purchaser or other transferee to whom
the Associate has attempted to transfer such shares.
8. Right of First Refusal. If the Associate wishes to sell or otherwise
transfer any of the vested Restricted Shares, then at least 30 days prior to any
such transfer, the Associate shall give notice to the Company (the "Notice").
The Notice shall set forth (i) the number of Restricted Shares proposed to be
sold or transferred; (ii) the date or proposed date of the sale or transfer;
(iii) the identity of the proposed transferee; and (iv) the principal terms of
the transfer, including the cash or other property or consideration to be
received upon such transfer. The Company shall have the right, but not the
obligation, to purchase all, but not less than all, of the Restricted Shares on
the same terms specified in the Notice. Within 30 days after receipt of the
Notice, the Company shall give written notice (the "Company Notice") to the
Associate stating whether or not it elects to exercise its right to purchase the
Restricted Shares and a date and time for consummation of such purchase, not
more than 10 days after the receipt by the Associate of the Company Notice.
Failure by the Company to deliver a Company Notice within such time period shall
be deemed an election by the Company not to exercise its right to purchase the
Restricted Shares. If the Company does not exercise its right to purchase the
Restricted Shares, then the Associate shall be free to transfer the Restricted
Shares on the terms provided in the Notice. Any Restricted Shares not purchased
within a period of 90 days of the Notice by the proposed transferee in the
Notice may not be sold or otherwise disposed of until they are again offered to
the Company under the procedures specified in this Section 6. The Company's
right of first refusal described in this Section 6 shall terminate upon the
closing of an initial public offering of the Company's Common Stock.
9. Restrictions on Public Sale by Associate. In connection with any
public offering, the Associate, if requested by the Company and the underwriters
managing such public offering, shall agree not to sell or otherwise transfer or
dispose of any Restricted Shares or other securities of the Company held by the
Associate (other than those Restricted Shares or other securities, if any,
included in the public offering) for a specified period of time determined by
the Company and the underwriters following the effective date of a registration
statement with the Securities and Exchange Commission covering such public
offering (the "Registration Statement"); provided, however, that. (i) such
agreement shall not exceed 180 days from the effective date of such
registration; (ii) all other Restricted Holders enter into similar agreements;
provided, however, that all restrictions set forth in this Section 7 shall
terminate and be of no further force or effect if any other Restricted Holder is
released from, or otherwise no longer bound by, such restrictions; and (iii)
such agreement shall only apply to the first such Registration Statement
covering Common Stock of the Company to be sold on its behalf to the public in
an initial public offering of securities by the Company. For purposes of this
Section 7, "Restricted Holders" shall mean: (x) parties to that certain Third
Amended and Restated Investor Rights Agreement, dated September 13, 2006, by and
among the Company and the stockholders named therein, and (y) any officer or
director of the Company.
10. Taxes and Withholding. No later than the date as of which an amount
first becomes includible in the gross income of the Associate for federal income
tax purposes with respect to any Restricted Shares, the Associate shall pay to
the Company, or make arrangements satisfactory to the Company regarding the
payment of, all federal, state, local and foreign taxes
that are required by applicable laws and regulations to be withheld with respect
to such amount. Notwithstanding anything to the contrary contained herein, the
Associate may discharge this withholding obligation by directing the Company to
withhold Restricted Shares with a value on a vesting date equal to the minimum
withholding obligation in connection with such vesting. The Company shall, to
the extent permitted by law, have the right to deduct any such taxes from the
delivery of the Restricted Shares that gives rise to the withholding
requirement.
11. REPRESENTATIONS. The Associate represents, warrants and covenants to
the Company that:
a. The Restricted Shares are being acquired for the Associate's
account for investment only and not with a view to, or for sale in
connection with, any distribution of the Restricted Shares in violation of
the Securities Act of 1933, as amended, or any rule or regulation
thereunder.
b. The Associate has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Company such information as
is necessary to permit the Associate to evaluate the merits and risks of an
investment in the Company.
c. The Associate is able to bear the economic risk of holding such
Restricted Shares for an indefinite period.
d. The Associate understands that (i) the Restricted Shares will not
be registered under the Securities Act and are "restricted securities"
within the meaning of Rule 144 under the Securities Act; (ii) the
Restricted Shares cannot be sold, transferred or otherwise disposed of
unless they are subsequently registered under the Securities Act or an
exemption from registration is then available; (iii) in any event, the
exemption from registration under Rule 144 will not be available for at
least one year and even then will not be available unless a public market
then exists for the Company's Common Stock, adequate information concerning
the Company is then available to the public, and other terms and conditions
of Rule 144 are complied with; and (iv) the Company has no obligation or
current intention to register any Restricted Shares acquired pursuant to
this Award under the Securities Act.
e. The Associate hereby represents that the Associate has obtained
appropriate legal or tax advice with respect to the tax consequences to the
Associate of the Award.
f. All stock certificates representing Restricted Shares issued to
the Associate shall have affixed thereto legends substantially in the
following form, in addition to any other legends required by applicable
state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
HYPOTHECATED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (1)
REGISTRATION IN COMPLIANCE WITH SAID ACT
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AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO
THE EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF
ANY RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT
OF FIRST REFUSAL AND RESTRICTIONS ON RESALE CONTAINED IN A RESTRICTED
SHARE AWARD AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A
COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE
COMPANY.
12. Consent of Spouse/Domestic Partner. If the Associate has a spouse
or domestic partner as of the date of this Award Agreement, the Associate's
spouse or domestic partner shall execute a Consent of Spouse/Domestic
Partner in the form of Exhibit A hereto, effective as of the date hereof.
Such consent shall not be deemed to confer or convey to the spouse or
domestic partner any rights in the Restricted Shares that do not otherwise
exist by operation of law or the agreement of the parties. If the Associate
subsequent to the date hereof, marries, remarries or applies to the Company
for domestic partner benefits, the Associate shall, not later than 60 days
thereafter, obtain his or her new spouse/domestic partner's acknowledgement
of and consent to the existence and binding effect of all restrictions
contained in this Award Agreement by having such spouse/domestic partner
execute and deliver a Consent of Spouse/Domestic Partner in the form of
Exhibit A.
13. Miscellaneous.
a. This Award Agreement and any instruments delivered pursuant
to this Award Agreement shall be construed, interpreted and governed
in accordance with the laws of the State of New Jersey, without regard
to the conflicts of law rules thereof.
b. Any claim or controversy arising out of, or relating to, this
Award Agreement, other than with respect to any confidentiality
agreement between Associate and the Company (or any officer, director,
employee or agent of the Company), or the beach thereof, shall be
settled by arbitration administrated by the American Arbitration
Association under its National Rules for the Resolution of Employment
Disputes. Such arbitration shall be held in New Jersey (or in such
other location as the Company may at the time be headquartered). The
arbitration shall be conducted before a three-member panel. Within
fifteen (15) days after the commencement of arbitration, each party
shall elect one person to act as arbitrator and the two selected shall
select a third arbitrator within ten (10) days of their appointment.
If the arbitrators selected by the parties are unable or fail to agree
upon the third arbitrator, the third arbitrator shall be selected by
the American Arbitration Association and shall be a member of the bar
of the State of New Jersey actively engaged in the practice of
employment law for at least ten years. The arbitration panel shall
apply the substantive laws of the State of New Jersey in connection
with the arbitration and the New Jersey Rules of Evidence shall apply
to all aspects of the arbitration. The award shall be made within
thirty days of the closing of the hearing. Judgment upon the award
rendered by the arbitrator(s) may be entered by any Court having
jurisdiction thereof.
c. This Award Agreement shall extend to, be binding upon and inure to the
benefit of the Associate, his legal representatives, his heirs, successors and
assigns (subject, however, to the limitations set forth herein with respect to
the assignment of the Award, the Restricted Shares or rights herein) and upon
the Company, its successors and assigns regardless of any change in the
business structure of the Company, be it through spinoff, merger, sale of
stock, sale of assets or any other transaction and shall be construed in a
manner that is consistent with the provisions of the Plan.
d. This Award Agreement contains the entire agreement of the parties
with respect to the subject matter hereof. No waiver, modification or change of
any provision of this Award Agreement shall be valid unless in writing and
signed by both parties.
e. The waiver of any breach of any duty, term or condition of this Award
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Award Agreement.
f. All notices pursuant to this Award Agreement will be in writing and
will be sent by personal delivery, telecopier, electronic mail or by prepaid
registered or certified mail, return receipt requested, addressed to the parties
hereto at the addresses set forth beneath their names on the signature page
hereto or to such other addresses as may hereafter be specified by like notice
in writing by either of the parties, and will be deemed given (i) upon receipt
if by personal delivery, (ii) on the day on which delivered if delivered by
telecopier (with confirmation of receipt (such receipt to be established by
acceptable protocol)), (iii) upon mailing if sent by registered or certified
mail or (iv) when transmitted if delivered by electronic mail (with satisfactory
evidence of transmittal (such evidence of transmittal to be established by
acceptable protocol)). Copies of all notices shall be sent to: Amicus
Therapeutics, Inc., 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000 Attention: VP, Human
Resources and Leadership Development, Telecopier No.000-000-0000.
g. The headings of the sections of this Award Agreement are inserted for
convenience of reference only and will not be deemed to constitute a part
hereof or to affect the meaning hereof.
h. This Award Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall together constitute one and
the same agreement.
[SIGNATURE PAGE FOLLOWS]
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By the signature of the Associate below, along with the signature of the
Company's authorized representative, the Associate and the Company agree that
the Restricted Shares are awarded under and governed by the terms and conditions
of this Award Agreement and the Plan.
AMICUS THERAPEUTICS, INC.
Date: By: /s/ Xxxx X. Xxxxxxx
---------------------------------- -----------------------------
Name: Xxxx X. Xxxxxxx
Title: President & CEO
Address: 0 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
ASSOCIATES ACCEPTANCE
The undersigned hereby accepts the foregoing Award Agreement and agrees to
the terms and conditions thereof. The undersigned hereby acknowledges receipt of
a copy of the Company's 2002 Equity Incentive Plan.
RECIPIENT
Date: 3/27/07 By: /s/ Xxxxx X. Xxxxxxx
---------------------------------- -----------------------------
Name: -- Xxxxx X. Xxxxxxx
Address: --
SSN#: --
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