EX-10.1 3 a16-4879_1ex10d1.htm EX-10.1 NOTE AND WARRANT PURCHASE AGREEMENT
Exhibit 10.1
NOTE AND WARRANT PURCHASE AGREEMENT
THIS NOTE AND WARRANT PURCHASE AGREEMENT (this “Agreement”) is made as of February 19, 2016 (the “Effective Date”) by and among Amicus Therapeutics, Inc. (“Amicus” or the “Company”), a Delaware corporation with its principal place of business at 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Amicus Therapeutics UK Limited (“Amicus UK,” and together with the Company, the “Companies”), a private limited company incorporated under the laws of England and Wales with company number 05541527 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx XX0 0XX Xxxxxx Xxxxxxx, and each Purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”).
The Companies desire to issue and sell to each Purchaser, and each Purchaser desires to purchase from the Companies, unsecured promissory notes with an aggregate principal amount of $50,000,000, and warrants to purchase common stock of Amicus, in each case, as described in this Agreement and on the terms and subject to the conditions set forth in this Agreement (the “Offering”). Of the $50,000,000 of unsecured promissory notes to be issued by the Companies, unsecured promissory notes with an aggregate principal amount of $15,000,000 will be issued by Amicus and unsecured promissory notes with an aggregate principal amount of $35,000,000 will be issued by Amicus UK.
On February 19, 2016, pursuant to that certain Assignment and Assumption Agreement, dated as of February 19, 2016, by and between Amicus and Amicus UK (the “Assignment Agreement”), Amicus shall assign to Amicus UK, and Amicus UK shall assume from Amicus, promissory notes with an aggregate principal amount of $35,000,000 issued pursuant to that certain Note and Warrant Purchase Agreement, by and among Amicus and the Purchasers, dated as of October 1, 2015 (the “Prior Agreement”), in exchange for $35,000,000 million in cash.
1.1 “Affiliate” means, with respect to any specified Person, at any time, a Person that, directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person at such time. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean (a) the direct or indirect ownership of more than 50% (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) of the total voting power of securities
or other evidences of ownership interest in such Person or (b) the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise.
1.2 “Common Stock” means the common stock of Amicus, par value $0.01 per share, and any other class of securities into which such securities may hereafter be reclassified or changed into.
1.3 “Exchange Act” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
1.4 “Holder” means each Person owning of record Registrable Securities that have not been sold to the public.
1.5 “Lock-Up Period” has the meaning ascribed to such term in Section 8.1.
1.6 “Material Adverse Effect” on or with respect to an entity (or group of entities taken as a whole) means any state of facts, event, change or effect that has had, or that would reasonably be expected to have, a material adverse effect on the business, properties, results of operations or financial condition of such entity (or of such group of entities taken as a whole).
1.7 “Nasdaq” means the Nasdaq Stock Market, Inc.
1.8 “Party” means a party to this Agreement.
1.9 “Person” means any individual, firm, corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
1.10 “Pivotal Study” means a clinical trial or study intended to provide data which a regulatory authority (e.g. United States Food and Drug Administration) can use in making an approval decision.
1.11 “Registrable Securities” means (a) the Warrants Shares and (b) any shares of Common Stock or other securities issued as (or issuable upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with respect to, or in exchange for or in replacement of, the Warrant Shares by way of stock dividend, stock split or in connection with a combination of shares, recapitalization or other reorganization or otherwise. Notwithstanding the foregoing, as to any particular securities described above, once issued they shall cease to be Registrable Securities when (i) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been disposed of in accordance with such Registration Statement, (ii) they shall have been distributed by Holder pursuant to Rule 144 (or any successor provision) under the Securities Act, (iii) such securities may be sold without volume restrictions pursuant to Rule 144, as determined by the counsel to Amicus pursuant to a written opinion letter to such
effect, addressed and acceptable to Amicus’ transfer agent, or (iv) such securities shall have been otherwise transferred in a private transaction in which the rights under Section 7 hereof have not been assigned in connection with such transfer.
1.12 “Registration Statement” means a registration statement filed pursuant to the Securities Act.
1.13 “Rule 144” means Rule 144 promulgated under the Securities Act, or any successor rule.
1.14 “SEC Guidance” means (a) any publicly-available written guidance, or rule of general applicability of the SEC staff, or (b) written comments, requirements or requests of the SEC staff to Amicus in connection with the review of a Registration Statement.
1.15 “SEC” means the U.S. Securities and Exchange Commission.
1.16 “SEC Reports” all materials filed by the Company with the SEC, whether or not so required to have been filed.
1.17 “Securities” means the Notes, the Warrants and the Warrant Shares.
1.18 “Securities Act” means the Securities Act of 1933, as amended, together with the rules and regulations promulgated thereunder.
1.19 “Trading Day” means a day on which the Common Stock is traded on Nasdaq.
1.20 “Transaction Documents” means this Agreement, the Notes, the Guarantee, the Warrants, and any other documents or agreements executed in connection with the transactions contemplated hereunder.
1.21 “VWAP” shall mean, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Company and reasonably acceptable to the holders of a majority in interest of the Warrants then outstanding, the fees and expenses of which shall be paid by the Company.
1.22 “Warrant Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
2.1 At the Initial Closing, on terms and conditions as set forth herein, Amicus will issue and sell to the Purchasers and the Purchasers will purchase from Amicus, Unsecured Promissory Notes in substantially the form attached hereto as Exhibit A (the “Initial US Notes”), in the principal amount set forth beneath the caption “Principal Amount of US Notes” opposite each Purchaser’s name on Schedule A attached hereto, and Amicus UK will issue and sell to the Purchasers and the Purchasers will purchase from Amicus UK, Unsecured Promissory Notes in substantially the form attached hereto as Exhibit B (the “Initial UK Notes,” and together with the Initial US Notes, the “Initial Notes”), in the principal amount set forth beneath the caption “Principal Amount of UK Notes” opposite each Purchaser’s name on Schedule A attached hereto, against payment by such Purchaser to the Companies of a purchase price equal to 100% of the principal amount of the Initial Notes purchased (the “Purchase Price”). The parties agree that in full consideration of the purchase price for the Initial Notes, each Purchaser shall surrender for cancellation all notes and warrants acquired from the Company pursuant to the Prior Agreement (the “Existing Securities”) and the Companies shall pay to each Purchaser any unpaid interest accrued thereunder. The parties irrevocably agree and confirm that the principal amounts due from the Companies to the Purchasers under the Existing Securities shall be set-off against the principal amounts due from the Purchasers to the Companies in connection with the purchase of the Initial Notes, and such set-off shall be in full and final settlement and discharge of any and all amounts, obligations and/or liabilities to make payment as between the parties, in each case, for the purchase of the Initial Notes and cancellation of the Existing Securities.
2.2 In addition, for every $1,000 of the principal amount of Notes purchased by a Purchaser, the Company will issue to such Purchaser a five-year warrant to purchase a number of shares of Common Stock equal to (rounded down to the nearest whole share) (i) $300.00 divided by the product of (x) the VWAP for the four (4) Trading Days beginning immediately prior to the date of issuance of such Notes, provided that if such result is less than $6.00 it shall be deemed to be $6.00 and if such result is more than $7.00 it shall be deemed to be $7.00, and (y) 132.5% (“Reference Price”), and in substantially the form attached hereto as Exhibit C (the “Initial Warrants”).
2.3 At any time following the date of issuance of the Initial Notes and prior to the earlier of (i) the second (2nd) anniversary of the Initial Closing Date and (ii) such date as the VWAP for any four consecutive trading days of the Company’s common stock equals or exceeds 200.0% of the VWAP price as of the Initial Closing Date (the earlier of (i) and (ii), the “Additional Notes End Date”), the Company will have the option (at its sole discretion) to issue and sell to the Purchaser (i) up to $10,000,000 principal amount of additional notes at least 60 days following Committee for Medicinal Products for Human Use (CHMP) positive opinion of migalastat in Europe and (ii) up to $15,000,000 principal amount of additional notes at least 32 days following start (i.e., dosing of the first patient) of a Pivotal Study for ATB200 (such Notes, the “Additional Notes”, and together with the Initial Notes, the “Notes”); provided that, at the time of such issuance of Additional Notes, there has not occurred and be continuing any state of facts, event, change or effect that
has had, or that would reasonably be expected to have, a material adverse effect on the business, properties, results of operations or financial condition of Amicus. The Company may exercise its right pursuant to this Section 2.3 by delivering written notice to the Purchasers on or prior to the Additional Notes End Date, which notice shall indicate the aggregate amount of Additional Notes that the Company intends to issue and sell to the Purchasers. For the sake of clarification, the Company shall not have the option to issue and sell Additional Notes to the Purchasers on or after the Additional Notes End Date unless notice thereof is delivered by the Company on or prior to the Additional Notes End Date.” All Additional Notes shall be issued on the same terms as the Initial Notes, except that all Additional Notes will mature on October 1, 2021, and will include warrants with the same terms as Initial Warrants (such warrants, the “Additional Warrants,” and together with the Initial Warrants, the “Warrants”). The purchase price for the Additional Notes shall be 100% of the principal amount thereof and be paid in cash. All Additional Notes will be issued by Amicus unless the Parties mutually agree otherwise.
2.4 The Company will provide a guaranty of the obligations under the Initial UK Notes and any Additional Notes that may be issued by Amicus UK in the form attached hereto as Exhibit D (the “Guarantee”).
3.2 Deliveries. Subject to the terms and conditions hereof:
(a) At the Initial Closing:
(i) each Purchaser shall deliver to Amicus such Purchaser’s Existing Securities for cancellation and the Companies will pay such Purchaser all outstanding accrued but unpaid interest on the notes purchased pursuant to the Prior Agreement, to the account designated by such Purchaser at least three business days prior to the Initial Closing;
(ii) Amicus or Amicus UK, as applicable, shall deliver to such Purchaser, (i) an Initial Note, in the name of such Purchaser, representing the aggregate principal amount of Initial Notes purchased by such Purchaser at the Initial Closing set beside such Purchaser’s name on Schedule A, and (ii) for each $1,000 principal amount of Initial Notes purchased by such Purchaser at the Initial Closing, a Warrant, registered in the name of such Purchaser, to purchase
up to a number of Warrant Shares equal to (rounded down to the nearest whole share) (i) $300.00 divided by (ii) the Reference Price; and
(iii) at the Initial Closing the Parties shall also deliver the Guarantee and such other documents as are required to be delivered by the Parties pursuant to the terms of this Agreement.
(b) At each Additional Closing:
(i) each Purchaser shall deliver to Amicus or Amicus UK, as applicable, such Purchaser’s share of the Purchase Price for the Additional Notes by wire transfer on such Closing Date to an account specified by Amicus;
(ii) Amicus or Amicus UK, as applicable, shall deliver to such Purchaser, (i) an Additional Note, in the name of such Purchaser, representing the aggregate principal amount of the Additional Notes purchased by such Purchaser at such Closing, and (ii) for each $1,000 principal amount of Additional Notes purchased by such Purchaser at such Closing, a Warrant, registered in the name of such Purchaser, to purchase up to a number of Warrant Shares equal to (rounded down to the nearest whole share) (i) $300.00 divided by (ii) (x) the VWAP for the four (4) Trading Days beginning immediately prior to the date of issuance of such Notes, and (y) 132.5%;
(iii) at each such Additional Closing the Parties shall also deliver the Guarantee and such other documents as are required to be delivered by the Parties pursuant to the terms of this Agreement.
(c) As soon as practicable after each Closing, Amicus UK shall obtain a listing for the Notes issued by it on the Cayman Islands Stock Exchange.
4.1 Organization and Good Standing. Amicus is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. Amicus UK is a private limited company incorporated under the laws of England and Wales duly organized, validly existing and in good standing under the laws of England and Wales and has all requisite corporate power and authority to own, lease and operate its properties and carry on its business as now conducted. The Companies are duly qualified and are in good standing as foreign corporations in each jurisdiction in which the properties owned, leased or operated, or the business conducted, by them requires such qualification except where the failure to be so qualified or in good standing, individually or in the aggregate, would not have
a Material Adverse Effect.
and clear of all liens and will not be subject to preemptive or similar rights of stockholders (other than those imposed by the Purchaser). The Company has reserved from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for the issuance of the Warrant Shares.
solicited any offers to buy any security, under circumstances that would require registration of any of the Securities under the Securities Act or cause this offering of the Securities to be integrated with prior offerings of the Company’s securities for purposes of the Securities Act.
4.11 Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 5.3 of this Agreement, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers hereunder.
5.2 Due Execution. Each of the Transaction Documents have been duly authorized, executed and delivered by Purchaser, and, upon due execution and delivery by the Companies, each of the Transaction Documents will be a valid and binding agreement of Purchaser, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally or by equitable principles.
(a) each Purchaser is acquiring the Securities, for its own account, not as nominee or agent, for investment and not with a view to, or for resale in connection with, any distribution or public offering thereof within the meaning of the Securities Act.
(b) each Purchaser understands that:
(i) the Securities have not been registered under the Securities Act by reason of a specific exemption therefrom, that such securities may be required to be held by it indefinitely under applicable securities laws, and that each Purchaser must, therefore, bear the economic risk of such investment indefinitely, unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration;
(ii) the Notes issued by Amicus UK are privately placed with the Purchasers and no prospectus has been prepared for the purposes of Directive 2003/71/EC (as amended including by Directive 2010/73/EU, the “Prospectus Directive”) and no prospectus will be prepared or approved by any competent authority of any European Economic Area member state or published for the purposes of the Prospectus Directive. As a result, the Notes issued by Amicus UK may not be offered or sold to persons in the European Economic Area other than to “qualified investors” as defined under the Prospectus Directive. Furthermore, each Purchaser understands that the offering of the Notes by Amicus UK has not been approved by an authorised person for the purposes of section 21 of the Financial Services and Markets Xxx 0000 (the
“FSMA”). Accordingly, documents and/or materials related to the offering of the Notes by Amicus UK are not being distributed to, and must not be passed on to, the general public in the United Kingdom. The communication of such documents and/or materials is exempt from the restriction on financial promotions under section 21 of the FSMA on the basis that it is only directed at and may be communicated to (i) persons who are outside the United Kingdom or (ii) investment professionals falling within Article 19(5) of the Financial Services and Markets Xxx 0000 (Financial Promotion) Order 2005 (the “Order”) or (iii) persons falling within Article 49(2)(a) to (d) of the Order or (iv) persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as “relevant persons”). No invitation, offer or agreement to subscribe, purchase or otherwise acquire the Notes issued by Amicus UK may be proposed or made other than with relevant persons. Any person who is not a relevant person should not act or rely on any documents and/or materials related to the offering of the Notes by Amicus UK or any of its contents.
(iii) each Note, each Warrant and each certificate representing Warrant Shares (unless a Registration Statement has become effective prior to issuance of the Warrant Shares) will be endorsed with the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
in addition, each Note issued by Amicus UK shall bear the following legend:
THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE EUROPEAN ECONOMIC AREA OTHER THAN TO QUALIFIED INVESTORS AS DEFINED UNDER DIRECTIVE 2003/71/EC (AS AMENDED, INCLUDING BY DIRECTIVE 2010/73/EU AND INCLUDES ANY RELEVANT IMPLEMENTING MEASURE IN THE RELEVANT MEMBER STATE) (THE “PROSPECTUS DIRECTIVE”) AND IN CIRCUMSTANCES WHICH DO NOT REQUIRE THE ISSUER TO PUBLISH A PROSPECTUS PURSUANT TO ARTICLE 3 OF THE PROSPECTUS DIRECTIVE. THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE UNITED KINGDOM OTHER THAN TO (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS XXX 0000 (FINANCIAL PROMOTION) ORDER 2005 (THE “ORDER”) OR (II) HIGH NET WORTH COMPANIES AND OTHER PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) OF THE ORDER.
; and
(iv) Amicus will not, and will instruct its transfer agent not to, as applicable, register the transfer of any of the Securities, or any portion thereof, unless the conditions specified in the foregoing legends are satisfied.
(c) Each Purchaser has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities to be purchased hereunder.
(d) Each Purchaser is an “accredited investor” as such term is defined in Rule 501(a) of the rules and regulations promulgated under the Securities Act and is not located or resident within the European Economic Area or the United Kingdom.
(e) No Purchaser is purchasing any of the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.
(f) Each Purchaser understands and acknowledges that the Companies may cut back (i) the number of Warrants to be purchased by such Purchaser to the extent necessary to prevent such Purchaser’s aggregate holdings of Common Stock with its Affiliates to exceed 19.9% of all Common Stock outstanding following the Offering and (ii) the aggregate number of Warrants offered to the extent such aggregate number is in excess of 19.9% of all Common Stock outstanding prior to the Offering. Notwithstanding the foregoing, the Purchasers shall have no obligation to purchase any Notes or Warrants to the extent such purchase would increase such Purchaser’s ownership in excess of 19.9%.
6.3 Condition to Obligations of each Party at a Closing. The obligations of the Companies and Purchasers to consummate the transactions contemplated to occur at a Closing shall be subject there being no statute, rule, regulation, executive order, decree, temporary restraining order, preliminary or permanent injunction or other order enacted, entered, promulgated, enforced or issued by any governmental entity or other legal restraint or prohibition preventing the consummation of the transactions contemplated by the Transaction Documents shall be in effect.
portion as permitted by SEC Guidance (provided that, Amicus shall use commercially reasonable efforts to advocate with the SEC for the registration of the maximum number of the Registrable Securities permitted by SEC Guidance), of the Registrable Securities; provided, that, if Amicus is not a “well known seasoned issuer” within the meaning of Rule 405 under the Securities Act or is otherwise not eligible to file an automatic shelf registration statement, Amicus shall use its reasonable best efforts to cause a Registration Statement to be declared effective (including, without limitation, the execution of any required undertaking to file post-effective amendments) as promptly as possible after the filing thereof, but in any event prior to the date which is ninety (90) days thereafter. Each Registration Statement shall be (x) on Form S-3 (except if Amicus fails to meet one or more of the registrant requirements specified in General Instruction I.A. on Form S-3, such registration shall be on another appropriate form in accordance herewith that allows for the Registrable Securities covered thereby to be registered on a delayed and continuous basis) or (y) pursuant to Rule 424(b) under the Securities Act, a prospectus supplement that shall be deemed to be part of an existing “shelf” registration statement in accordance with Rule 430B under the Securities Act and shall permit a delayed or continuous offering. Amicus shall cause all Registrable Securities to be listed on NASDAQ and to comply with the listing requirements of NASDAQ, including all corporate governance requirements.
(a) Use its reasonable best efforts (i) to maintain the continuous effectiveness of each Registration Statement (and maintain the current status of the prospectus or prospectuses contained therein) until the earlier of such time as (A) all such shares of Registrable Securities having been sold pursuant to such Registration Statement, (B) all Registrable Securities can be freely sold without volume limitations pursuant to Rule 144 (including at such times as the holder may be deemed to be an affiliate of the Company at the time of resale) and (C) twenty-four calendar months from the date of effectiveness of the Registration Statement (the “Registration Period”), and (ii) subject to Section 7.3(k), to take such other actions as are necessary to permit the Holders to sell such Registrable Securities without restriction as promptly as practicable pursuant to such Registration Statement. In the case of any Registration Statement that is an automatic shelf registration statement, a new registration statement pursuant to Rule 415(a)(6) with respect to the Registrable Securities will be deemed to be an amendment to such Registration Statement for purposes of this Section 7, and references in this Section 7 to a Registration Statement, except in clause (ii) above, shall include such new registration statement.
(b) advise Holders promptly (and, in any event, within five business days):
(i) when the Registration Statement or any amendment thereto has been filed with the SEC and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of the receipt by Amicus of any notification from the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for such purpose;
(iii) of the receipt by Amicus of any notification with respect to the suspension of the qualification of the Registrable Securities included therein for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and
(iv) of the occurrence of any event that requires the making of any changes in the Registration Statement or the prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in the light of the circumstances under which they were made) not misleading;
(c) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement as soon as reasonably practicable;
(d) if any Holder so requests in writing, promptly furnish to such Holder, without charge, at least one copy of such Registration Statement and any post-effective amendment thereto, including financial statements and schedules, and, if explicitly requested, all exhibits in the form filed with the SEC;
(e) during the Registration Period, promptly deliver to each Holder, without charge, at least one copy of the prospectus included in such Registration Statement and any amendment or supplement thereto and as many additional copies as each Holder may reasonably request; and Amicus consents to the use, consistent with the provisions hereof, of the prospectus or any amendment or supplement thereto by each Holder in connection with the offering and sale of the Registrable Securities covered by the prospectus or any amendment or supplement thereto;
(f) during the Registration Period, if a Holder so requests in writing, deliver to such Holder, without charge, (i) one copy of the following documents, other than those documents available via XXXXX (and excluding, in each case, exhibits thereto): (A) its annual report to its stockholders, if any (which annual report will contain financial statements audited in accordance with GAAP by a firm of certified public accountants of recognized standing), (B) if not included in substance in its annual report to stockholders, its annual report on Form 10-K (or similar form), (C) its definitive proxy statement with respect to its annual meeting of stockholders, (D) each of its quarterly reports to its stockholders, and, if not included in substance in its quarterly reports to stockholders, its quarterly report on Form 10-Q (or similar form), and (E) a copy of the Registration Statement; and (ii) if explicitly requested, any exhibits filed with respect to the
foregoing;
(g) comply in all material respects with all applicable rules and regulations of the SEC which could affect the resale of the Registrable Securities;
(h) use its reasonable best efforts to cause all Registrable Securities to be listed on each securities exchange or market, if any, on which equity securities issued by Amicus have been listed;
(i) use its reasonable best efforts to take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby and to enable the Holders to sell Registrable Securities under Rule 144; and
(j) at least three (3) Business Days prior to the filing of the Registration Statement or any prospectus or any amendments or supplements thereto, or comparable statements under securities or state “blue sky” laws of any jurisdiction, or any free writing prospectus related thereto, or before sending a response to an SEC comment letter related to the Registration Statement, Amicus shall furnish to counsel for the Holders copies of reasonably complete drafts of all such documents proposed to be filed (including all exhibits thereto and each document incorporated by reference therein to the extent then required by the rules and regulations of the SEC), which documents will be subject to the review and comment of counsel for the Holders, and Amicus shall consider in good faith the changes reasonably requested by counsel for the Holders prior to making any such filing; provided that, in the case of this clause (j), Amicus will not be required to delay the filing of the Registration Statement or any amendment or supplement thereto to incorporate any comments to the Registration Statement or any amendment or supplement thereto by or on behalf of any Holder if such comments would require a delay in the filing of such Registration Statement, amendment or supplement, as the case may be.
(k) With respect to any Registration Statement that has been filed pursuant to Section 7.1, (i) upon the issuance by the SEC of any stop order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose; (ii) if any Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading (including, in any such case, as a result of the non-availability of financial statements); or (iii) if, in the good faith judgment of Amicus following consultation with legal counsel, it would be detrimental to Amicus or its stockholders for resales of Registrable Securities to be made pursuant to the Registration Statement due to (A) the existence of a material development or potential material development involving Amicus that Amicus would be obligated to disclose or incorporate by reference in the Registration Statement, which disclosure would be premature or otherwise inadvisable at such time, or (B) interference with an actual or potential material financing or business combination transaction involving Amicus, (I)(1) in the case of clause (ii) above, but subject to clause (iii) above, Amicus shall as promptly as reasonably practicable prepare and file a post-effective amendment to such Registration Statement or a supplement to the related prospectus so that such Registration Statement or prospectus does not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading, and in the case of a post-effective amendment to a Registration Statement, use reasonable best efforts to cause it to become effective as promptly as reasonably practicable and (2) in the case of clause (i) above, use reasonable best efforts to cause such stop order to be lifted, and (II) Amicus shall give notice to the Holders that the availability of such Registration Statement is suspended and, upon receipt of any such notice, each Holder agrees that it shall not sell any of the registered securities pursuant to a Registration Statement until such Holder or counsel for the Holders is notified by Amicus of the effectiveness of the post-effective amendment to a Registration Statement provided for in clause (I) above, or until it is notified in writing by Amicus that the Registration Statement may be used. In connection with any circumstance covered by clause (iii) above, Amicus shall be entitled to exercise its rights pursuant to this Section 7.3(k) to suspend the availability of the Registration Statement for no more than thirty (30) consecutive days and an aggregate of sixty (60) days in any 180-day period, provided however, to the extent Registrable Securities remain outstanding, the 180 day Registration Period set forth in Section 7.3(a) shall be extended by the duration of any suspension pursuant to this Section 7.3(k). Amicus shall promptly notify counsel for the Holders upon the receipt of any comment letter or request by the SEC, state securities authority or other Governmental Entity for amendments or supplements to any Registration Statement or the prospectus related thereto or for additional information.
7.5 Indemnification; Contribution.
(a) Amicus shall indemnify and hold harmless each Holder (including the employees, agents, representatives, officers and directors of each Purchaser and its Affiliates) (each a “Purchaser Indemnitee”) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of, directly or indirectly, any untrue statement of a material fact contained in any Registration Statement or any other document filed in accordance with this Section 7, or any omission to state therein a fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that Amicus will not be liable in any such case to the extent that any such
Damages arise out of, directly or indirectly, any untrue statement or omission, made in reliance upon and in conformity with written information furnished in writing to Amicus by such Holder specifically and expressly for inclusion in such document.
(b) Each Holder shall indemnify and hold harmless Amicus, and its respective directors, officers, employees and each Person who controls Amicus (within the meaning of the Securities Act and the Exchange Act) from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of, directly or indirectly, any untrue statement of a material fact contained in any Registration Statement or any other document filed in accordance with this Section 7, or any omission to state therein a fact required to be stated therein or necessary to make the statements therein not misleading, if such statement or omission was made in reliance upon and in conformity with any information concerning such Holder furnished in writing to Amicus by such Holder specifically for use in the preparation of such document.
(c) Each Person entitled to indemnification hereunder (the “Indemnified Party”) agrees to give prompt written notice to the indemnifying party (the “Indemnifying Party”) after the receipt by the Indemnified Party of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which the Indemnified Party intends to claim indemnification or contribution pursuant to the Transaction Documents; provided, however, that the failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability that it may have to the Indemnified Party hereunder unless, and only to the extent that, such failure results in the Indemnifying Party’s forfeiture of substantive rights or defenses. If notice of commencement of any such action is given to the Indemnifying Party as above provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such action at its own expense, with counsel chosen by it and reasonably satisfactory to such Indemnified Party. The Indemnified Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel (other than reasonable costs of investigation) shall be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory to the Indemnified Party in its reasonable judgment or (iii) the named parties to any such action (including any impleaded parties) have been advised by such counsel that either (x) representation of such Indemnified Party and the Indemnifying Party by the same counsel would be inappropriate under applicable standards of professional conduct or (y) there may be one or more legal defenses available to it which are different from or additional to those available to the Indemnifying Party. In either of such cases, the Indemnifying Party shall not have the right to assume the defense of such action on behalf of such Indemnified Party. No Indemnifying Party shall be liable for any settlement entered into without its written consent (other than in the case where the Indemnifying Party is unconditionally released from liability and its rights are not adversely effected), which consent shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7.5 from the Indemnifying Party pursuant to applicable law is unavailable to an Indemnified Party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative faults of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, Knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Sections 7.5(a), (b) and (c), any legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 7.5(d) were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of an intentional or fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person.
(a) make and keep public information available, as those terms are understood and defined in Rule 144(c)(1) or any similar or analogous rule promulgated under the Securities Act, at all times after the Effective Date;
(b) file with the SEC, in a timely manner, all reports and other documents required of Amicus under the Exchange Act; and
(c) so long as any Holder owns any Registrable Securities, furnish such Holders forthwith upon request: (i) a written statement by Amicus as to its compliance with the reporting requirements of Rule 144 under the Securities Act, and of the Exchange Act; (ii) a copy of the most recent annual or quarterly report of Amicus; and (iii) such other reports and documents as a Holder may reasonably request in availing itself of any rule of regulation of the SEC allowing it to sell any such securities without registration.
Agreement.
8.2 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of law thereof that would require the application of the laws of any other jurisdiction. Each Party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such Party at the address in effect for notices to it under the Transaction Documents and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
8.11 Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in their review and negotiation of the Transaction Documents.
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Parties understand and acknowledge the significance and consequence of such specific waiver of Section 1542 and laws of similar import of Delaware and hereby assume full responsibility for any injuries, damages, losses, or liability that they may hereafter incur from, arising out of or otherwise by virtue of the Prior Agreement.
[Signature pages follow]
This Note and Warrant Purchase Agreement is hereby executed as of the date first above written.
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COMPANIES: | ||
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AMICUS THERAPEUTICS, INC. | ||
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By: |
/s/ Xxxxxxx X. Xxxxxxxx | |
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Name: Xxxxxxx X. Xxxxxxxx | ||
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Title: President and COO | ||
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Address: |
0 Xxxxx Xxxxx Xxxxx | |
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Xxxxxxxx, XX 00000 | |
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AMICUS THERAPEUTICS UK LIMITED | ||
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By: |
/s/ Xxxx X. Xxxxxxx | |
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Name: Xxxx X. Xxxxxxx | ||
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Title: Director | ||
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By: |
/s/ Xxxxxxx X. Xxxxx, III | |
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Name: Xxxxxxx X. Xxxxx, III | ||
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Title: Director | ||
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Address: |
Phoenix House | |
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Oxford Road, Tatling End | |
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Gerrards Cross, Buckinghamshire SL9 7AP UK | |
[Signature page to Note and Warrant Purchase Agreement]
PURCHASERS: |
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Redmile Capital Fund, LP |
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/s/ Xxxxxx Xxxxx |
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By: Xxxxxx Xxxxx |
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Title: |
Managing Member of the General Partner and the Investment Manager |
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Redmile Capital Offshore Fund, Ltd. |
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/s/ Xxxxxx Xxxxx |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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Redmile Capital Offshore Fund II, Ltd. |
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/s/ Xxxxxx Xxxxx |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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Redmile Special Opportunities Fund, Ltd. |
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/s/ Xxxxxx Xxxxx |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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P Redmile Ltd. |
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/s/ Xxxxxx Xxxxx |
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By: Xxxxxx Xxxxx |
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Title: |
As Managing Member of Redmile Group, LLC — Investment Adviser to P Redmile Ltd. |
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[Signature page to Note and Warrant Purchase Agreement]
Schedule A
Notes Amounts
Purchaser |
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Principal Amount of US Notes |
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Principal Amount of UK Notes |
| ||
Redmile Capital Fund, LP |
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$ |
3,036,622.80 |
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$ |
7,085,453.20 |
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Redmile Capital Offshore Fund, Ltd. |
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$ |
4,070,718.30 |
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$ |
9,498,342.70 |
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Redmile Capital Offshore Fund II, Ltd. |
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$ |
2,982,886.20 |
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$ |
6,960,067.80 |
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Redmile Special Opportunities Fund, Ltd. |
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$ |
409,772.70 |
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$ |
956,136.30 |
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P Redmile Ltd. |
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$ |
4,500,000.00 |
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$ |
10,500,000.00 |
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Total: |
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$ |
15,000,000.00 |
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$ |
35,000,000.00 |
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Exhibit A
FORM OF UNSECURED PROMISSORY NOTE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
AMICUS THERAPEUTICS, INC.
UNSECURED PROMISSORY NOTE
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Note No.: |
$ |
, 201 (the “Issue Date”) |
1. Principal. Amicus Therapeutics, Inc., a Delaware corporation (the “Company”), for value received, hereby promises to pay to the order of (“Holder”) in lawful money of the United States of America at the address for notices to Holder set forth below, the principal amount of $ , together with interest as set forth below. This Note was issued by the Company in connection with a private offering of substantially identical Unsecured Promissory Notes (collectively, the “Notes”) and warrants pursuant to that certain Note and Warrant Purchase Agreement entered into among the Company, Amicus Therapeutics UK Limited and the purchasers of Notes (the “Purchase Agreement”), and is subject to its terms. Capitalized terms not otherwise defined herein shall have the meaning given in the Purchase Agreement.
(a) 0.00% of the outstanding principal amount of this Note that is prepaid, if prepaid prior to the first (1st) anniversary of the Issue Date;
(b) 2.00% of the outstanding principal amount of this Note that is prepaid, if prepaid prior to the second (2nd) anniversary of the Issue Date; and
(c) 1.00% on the outstanding principal amount of this Note that is prepaid, if prepaid prior to the third (3rd) anniversary of the Issue Date;
provided, however, if this Note is voluntarily prepaid by the Company pursuant to this Section 4 prior to the applicable maturity date therefor in connection with a Fundamental Transaction, the Company shall (in lieu of any other prepayment premiums) pay a premium of six percent (6.00%) on the then outstanding principal amount of this Note that is prepaid.
“Fundamental Transaction” means any capital reorganization, reclassification of the capital stock of the Company, consolidation or merger of the Company with another entity in which the Company is not the surviving corporation, or sale, transfer or other disposition of all or substantially all of the Company’s assets to another entity shall be effected.
Any prepayment of this Note will be credited first against accrued interest, then principal. Upon payment in full of the amount of all principal and interest payable hereunder, this Note shall be surrendered to the Company for cancellation. Acceleration of a Note pursuant to Section 7.2 shall not constitute a prepayment pursuant to this Section 4.
6. Security. THIS NOTE IS A GENERAL UNSECURED OBLIGATION OF THE COMPANY.
7.1 Events of Default. An “Event of Default” shall occur hereunder:
(i) if the Company shall default in the payment of the principal of this Note,
when and as the same shall become due and payable and after written demand for payment thereof has been made and such amount remains unpaid for 5 business days after the date of such notice; or
(ii) if the Company shall default in the payment of any interest or premium on this Note, when and as the same shall become due and payable and after written demand for payment thereof has been made and such amount remains unpaid for 5 business days after the date of such notice; or
(iii) if the Company shall default in the due observance or performance of any covenant, representation, warranty, condition or agreement on the part of the Company to be observed or performed pursuant to the terms hereof, and such default is not remedied or waived within the time periods permitted therein, or if no cure period is provided therein, within 30 calendar days after the Company receives written notice of such default; or
(iv) if the Company shall commence any proceeding in bankruptcy or for dissolution, liquidation, winding-up, composition or other relief under state or federal bankruptcy laws;
(v) if such proceedings are commenced against the Company, or a receiver or trustee is appointed for the Company or a substantial part of its property, and such proceeding or appointment is not dismissed or discharged within 120 calendar days after its commencement.
10. Noncircumvention. The Company hereby covenants and agrees that the Company
will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all the provisions of this Note.
time to time. The Company may deem and treat the registered Holder of this Note as the absolute owner hereof for the purpose of any distribution of principal or interest to the Holder, and for all other purposes, absent actual notice to the contrary reasonably satisfactory to the Company.
17. Governing Law. This Note and all rights, obligations and liabilities hereunder shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.
18. Amendment. Any term of this Note may be amended, and any provision hereof
waived, with the written consent of the Company and Holders of at least 85% of the aggregate principal amount of the Notes then outstanding; provided, however, that no such amendment or waiver may (i) modify the outstanding principal amount or interest rate of this Note, or (ii) disproportionately and adversely affect the Holder relative to the holders of all other Notes, in each case without the Holder’s consent. Any amendment effected in accordance with this Section shall be binding upon all holders of Notes, each future holder of the Notes, and the Company. By acceptance hereof, the Holder acknowledges that in the event the required consent is obtained, any term of this Note may be amended or waived with or without the consent of the Holder.
[Signature page follows]
This Note is hereby issued by the Company as of the year and date first above written.
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AMICUS THERAPEUTICS, INC. | |||
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By: |
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Name: | |||
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Title: | |||
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Address: |
0 Xxxxx Xxxxx Xxxxx | ||
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Xxxxxxxx, XX 00000 | ||
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Acknowledged and agreed: |
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[HOLDER] |
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By: |
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Name: |
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Title: |
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Annex 1
FORM OF ASSIGNMENT
(To assign the foregoing Note, execute this form and supply required information)
FOR VALUE RECEIVED, the foregoing Note and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) | |||
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Address: |
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(Please Print) | |||
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Dated: |
, 20 | ||
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Holder’s Signature: |
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Holder’s Address: |
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NOTE: The signature to this Form of Assignment must correspond with the name as it appears on the face of the Note, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Note.
Exhibit B
FORM OF UNSECURED PROMISSORY NOTE
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO AMICUS UK AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE EUROPEAN ECONOMIC AREA OTHER THAN TO QUALIFIED INVESTORS AS DEFINED UNDER DIRECTIVE 2003/71/EC (AS AMENDED, INCLUDING BY DIRECTIVE 2010/73/EU AND INCLUDES ANY RELEVANT IMPLEMENTING MEASURE IN THE RELEVANT MEMBER STATE) (THE “PROSPECTUS DIRECTIVE”) AND IN CIRCUMSTANCES WHICH DO NOT REQUIRE THE ISSUER TO PUBLISH A PROSPECTUS PURSUANT TO ARTICLE 3 OF THE PROSPECTUS DIRECTIVE. THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE UNITED KINGDOM OTHER THAN TO (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS XXX 0000 (FINANCIAL PROMOTION) ORDER 2005 (THE “ORDER”) OR (II) HIGH NET WORTH COMPANIES AND OTHER PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) OF THE ORDER.
AMICUS THERAPEUTICS UK LIMITED
UNSECURED PROMISSORY NOTE
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Note No.: |
$ |
, 201 (the “Issue Date”) |
1. Principal. Amicus Therapeutics UK Limited, a private limited company incorporated under the laws of England and Wales with company number 05541527 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx (“Amicus UK”), for value received, hereby promises to pay to the order of (“Holder”) in lawful money of the United States of America at the address for notices to Holder set forth below, the principal amount of $ , together with interest as set forth below. This Note was issued by Amicus UK in connection with a private offering of substantially identical Unsecured Promissory Notes (collectively, the “Notes”) and warrants pursuant to that certain Note and Warrant Purchase Agreement entered into among Amicus UK, Amicus Therapeutics, Inc. (“Amicus”) and the purchasers of Notes (the “Purchase Agreement”), and is subject to its terms. Capitalized terms not otherwise defined herein shall have the meaning given in the Purchase Agreement. This Note is being issued by Amicus UK pursuant to the Purchase Agreement and the Assignment Agreement and is intended to record and represent Amicus UK’s obligations thereunder.
(d) 0.00% of the outstanding principal amount of this Note that is prepaid, if prepaid prior to the first (1st) anniversary of the Issue Date;
(e) 2.00% of the outstanding principal amount of this Note that is prepaid, if prepaid prior to the second (2nd) anniversary of the Issue Date; and
(f) 1.00% on the outstanding principal amount of this Note that is prepaid, if prepaid prior to the third (3rd) anniversary of the Issue Date;
provided, however, if this Note is voluntarily prepaid by Amicus UK pursuant to this Section 4 prior to the applicable maturity date therefor in connection with a Fundamental Transaction, Amicus UK shall (in lieu of any other prepayment premiums) pay a premium of six percent (6.00%) on the then outstanding principal amount of this Note that is prepaid.
“Fundamental Transaction” means any capital reorganization, reclassification of the capital stock of Amicus UK, consolidation or merger of Amicus UK with another entity in which Amicus UK is not the surviving corporation, or sale, transfer or other disposition of all or substantially all of Amicus UK’s assets to another entity shall be effected.
Any prepayment of this Note will be credited first against accrued interest, then principal. Upon payment in full of the amount of all principal and interest payable hereunder, this Note shall be surrendered to Amicus UK for cancellation. Acceleration of a Note pursuant to Section 7.2 shall not constitute a prepayment pursuant to this Section 4.
6. Security. THIS NOTE IS A GENERAL UNSECURED OBLIGATION OF THE COMPANY.
7.1 Events of Default. An “Event of Default” shall occur hereunder:
(i) if Amicus UK shall default in the payment of the principal of this Note, when and as the same shall become due and payable and after written demand for payment thereof has been made and such amount remains unpaid for 5 business days after the date of such notice; or
(ii) if Amicus UK shall default in the payment of any interest or premium on this Note, when and as the same shall become due and payable and after written demand for payment thereof has been made and such amount remains unpaid for 5 business days after the date of such notice; or
(iii) if Amicus UK shall default in the due observance or performance of any covenant, representation, warranty, condition or agreement on the part of Amicus UK to be observed or performed pursuant to the terms hereof, and such default is not remedied or waived within the time periods permitted therein, or if no cure period is provided therein, within 30 calendar days after Amicus UK receives written notice of such default; or
(iv) if Amicus UK shall commence any proceeding in bankruptcy or for dissolution, liquidation, winding-up, composition or other relief under state or federal bankruptcy laws;
(v) if such proceedings are commenced against Amicus UK, or a receiver or trustee is appointed for Amicus UK or a substantial part of its property, and such proceeding or appointment is not dismissed or discharged within 120 calendar days after its commencement.
7.2 Acceleration. If an Event of Default occurs under Section 7.1(iv) or (v),
then the outstanding principal of and accrued and unpaid interest on this Note shall automatically become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which are expressly waived. If any other Event of Default occurs and is continuing, the Holder, by written notice to Amicus UK, may declare the outstanding principal of and accrued and unpaid interest and premium (if applicable) on this Note to be due and payable immediately. Upon any such declaration of acceleration, such principal and interest and premium (if applicable) shall become immediately due and payable and the Holder shall be entitled to exercise all of its rights and remedies hereunder and under the Purchase Agreement whether at law or in equity. The failure of the Holder to declare the Note due and payable shall not be a waiver of their right to do so, and the Holder shall retain the right to declare this Note due and payable unless the Holder shall execute a written waiver.
violate any securities laws. Subject to the preceding sentence, and subject to compliance with any applicable securities laws and the conditions set forth in Section 13(D), this Note and all rights hereunder are transferable, in whole or in part, upon surrender of this Note at the principal office of Amicus UK or its designated agent, together with a written assignment of this Note substantially in the form attached hereto as Annex 1 duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, Amicus UK shall execute and deliver a new Note or Notes in the name of the assignee or assignees and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Note evidencing the portion of this Note not so assigned, and this Note shall promptly be cancelled.
(E) Any or all of the transfer restrictions in Sections 13(A) to (D) will cease to apply as required in order to meet the definition of “Quoted Eurobond” pursuant to section 987 of the Income Tax Xxx 0000 or listing requirements of the Cayman Islands Stock Exchange.
17. Governing Law. This Note and all rights, obligations and liabilities hereunder shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.
to any affiliate of the Companies organized under the laws of England and Wales.
Annex 1
FORM OF ASSIGNMENT
(To assign the foregoing Note, execute this form and supply required information)
FOR VALUE RECEIVED, the foregoing Note and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) | |||
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Address: |
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(Please Print) | |||
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Dated: |
, 20 | ||
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Holder’s Signature: |
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Holder’s Address: |
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NOTE: The signature to this Form of Assignment must correspond with the name as it appears on the face of the Note, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Note.
Exhibit C
FORM OF WARRANT TO PURCHASE COMMON STOCK
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
AMICUS THERAPEUTICS, INC.
WARRANT TO PURCHASE COMMON STOCK
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Warrant No.: |
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Date of Issuance: , 201 |
VOID AFTER , 2021
THIS CERTIFIES THAT, for value received, , or permitted registered assigns (the “Holder”), is entitled, subject to the terms set forth below, to subscribe for and purchase at the Exercise Price (defined below) from Amicus Therapeutics, Inc., a Delaware corporation (the “Company”), up to shares of Common Stock, par value $.01 per share (the “Common Stock”), of the Company. This warrant is one of a series of warrants issued by the Company as of the date hereof (individually, a “Warrant”; collectively, the “Warrants”) pursuant to that certain Note and Warrant Purchase Agreement, dated February 19, 2016, among the Company, Amicus Therapeutics UK Limited, and each of the investors named therein (the “Purchase Agreement”).
(A) “Eligible Market” means any of the New York Stock Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or The NASDAQ Capital Market.
(B) “Exercise Period” shall mean the period commencing the Date of Issuance and ending on , 2021.
(C) “Exercise Price” shall mean the product of (x) the VWAP for the four (4)
Trading Days beginning immediately prior to the date of issuance of the Notes, provided that if such result is less than $6.00 it shall be deemed to be $6.00 and if such result is more than $7.00 it shall be deemed to be $7.00, and (y) 132.5%, subject to adjustment pursuant to Section 4 below. For any Warrants issued pursuant to Additional Notes, the exercise price shall be the product of (x) the VWAP for the four (4) Trading Days beginning immediately prior to the date of issuance of such Additional Notes, and (y) 132.5%, subject to adjustment pursuant to Section 4 below.
(D) “Trading Day” shall mean (i) any day on which the Common Stock is listed or quoted and traded on its primary Trading Market, (ii) if the Common Stock is not then listed or quoted and traded on any Eligible Market, then a day on which trading occurs on the OTC Bulletin Board (or any successor thereto), or (iii) if trading does not occur on the OTC Bulletin Board (or any successor thereto), any business day.
(E) “Trading Market” shall mean the OTC Bulletin Board or any other Eligible Market, or any national securities exchange, market or trading or quotation facility on which the Common Stock is then listed or quoted.
(F) “VWAP” shall mean, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the OTC Bulletin Board is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the OTC Bulletin Board, (c) if the Common Stock is not then listed or quoted for trading on the OTC Bulletin Board and if prices for the Common Stock are then reported in the “Pink Sheets” published by Pink OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Company and reasonably acceptable to the holders of a majority in interest of the Warrants then outstanding, the fees and expenses of which shall be paid by the Company.
(G) “Warrant Shares” shall mean the shares of the Common Stock issuable upon exercise of this Warrant.
(A) an executed written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”); and
(B) payment of the Exercise Price in cash or by check.
The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Execution and delivery of the Exercise Notice shall have the same effect as cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase the remaining number of Warrant Shares, if any.
Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the Company to the Holder by crediting the account of the Holder’s prime broker with the Depository Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system if the Company’s transfer agent is a participant in such system, and otherwise by physical delivery to the address specified by the Holder in the Exercise Notice, in each case within three business days from the delivery to the Company of the Exercise Notice and payment of the aggregate Exercise Price as set forth above. This Warrant shall be deemed to have been exercised on the date the Exercise Price is received by the Company.
The person in whose name any certificate or certificates for Warrant Shares are to be issued upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on the date on which payment of the Exercise Price was made, irrespective of the date such Warrant Shares are credited to the DTC account of the Holder’s prime broker or the date of delivery of the certificate or certificates evidencing such Warrant Shares, as the case may be, except that, if the date of such payment is a date when the stock transfer books of the Company are closed, such person shall be deemed to have become the holder of such shares at the opening of business on the next succeeding date on which the stock transfer books are open.
Subject to Section 2.4 and the final sentence of this paragraph and to the extent permitted by law, the Company’s obligations to issue and deliver Warrant Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any person or entity or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other person or entity of any obligation to the Company or any violation or alleged violation of law by the Holder or any other person or entity, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of Warrant Shares. The Holder shall have the right to pursue any remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof.
2.2. Payment of Taxes and Expenses. The Company shall pay any recording, filing,
stamp or similar tax which may be payable in respect of any transfer involved in the issuance of, and the preparation and delivery of certificates (if applicable) representing, (A) any Warrant Shares purchased upon exercise of this Warrant and/or (B) new or replacement warrants in the Holder’s name or the name of any transferee of all or any portion of this Warrant; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance, delivery or registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.
transfer agent setting forth the number of shares of the Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to such Holder the number of shares of the Common Stock then outstanding. In any case, the number of outstanding shares of the Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by such Holder or its affiliates since the date as of which such number of outstanding shares of the Common Stock was reported. The provisions of this Section 2.4 may be waived by such Holder, at the election of such Holder, upon not less than 61 days’ prior notice to the Company, and the provisions of this Section 2.4 shall continue to apply until such 61st day (or such later date, as determined by such Holder, as may be specified in such notice of waiver). For purposes of this Section 2.4, an “Excluded Holder” shall mean a Holder (together with such Holder’s affiliates) that beneficially owned in excess of 19.9% of the number of shares of the Common Stock outstanding on the date this Warrant was issued to such Holder; provided, however, that if thereafter such Holder (together with such Holder’s affiliates) shall beneficially own 19.9% or a percentage less than 19.9% of the number of shares of the Common Stock outstanding, then such Holder shall cease to be an “Excluded Holder” hereunder.
(A) If the Company, at any time while this Warrant is outstanding, (i) pays a stock dividend on the Common Stock or otherwise makes a distribution on any class of capital stock that is payable in shares of the Common Stock, (ii) subdivides outstanding shares of the Common Stock into a larger number of shares, or (iii) combines outstanding shares of the Common Stock into a smaller number of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of the Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of the Common Stock outstanding immediately after such event and the number of Warrant Shares issuable upon exercise of this Warrant shall be proportionately adjusted. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution, and any adjustment pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
(B) If the Company, at any time while this Warrant is outstanding, distributes to holders of the Common Stock (i) evidences of its indebtedness, (ii) any security (other than a distribution of the Common Stock covered by the preceding paragraph), (iii) rights or warrants to subscribe for or purchase any security, or (iv) any other asset (in each case, “Distributed Property”), then in each such case the Holder shall be entitled upon exercise of this Warrant for the purchase of any or all of the Warrant Shares, to receive the amount of Distributed Property which would have been payable to the Holder had such Holder been the holder of such Warrant Shares on the record date for the determination of stockholders entitled to such Distributed Property. The Company will at all times set aside in escrow and keep available for distribution to such holder upon exercise of this Warrant a portion of the Distributed Property to satisfy the distribution to which such Holder is entitled pursuant to the preceding sentence.
(C) Upon the occurrence of each adjustment pursuant to this Section 4, the Company at its expense will, promptly provide written notice thereof to the Holder and, at the written request of the Holder, promptly compute such adjustment in accordance with the terms of this Warrant and prepare a certificate setting forth such adjustment, including a statement of the adjusted Exercise Price and adjusted number or type of Warrant Shares or other securities issuable upon exercise of this Warrant (as applicable), describing the transactions giving rise to such adjustments and showing in detail the facts upon which such adjustment is based. Upon written request, the Company will promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer agent.
(D) No adjustment in the Exercise Price shall be required unless such adjustment would require an increase or decrease of at least $0.0001; provided, however, that any adjustments which by reason of this Section 4(D) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; provided, further, however, that adjustments shall be required and made in accordance with the provisions of this Section 4 (other than this Section 4(D)) not later than such time as may be required in order to preserve the tax-free nature of a distribution, if any, to the Holder of this Warrant or the Warrant Shares issuable upon the exercise hereof. All calculations under this Section 4 shall be made to the $0.0001 or to the nearest 1/1000th of a share, as the case may be. Anything in this Section 4 to the contrary notwithstanding, the Company shall be entitled to make such reductions in the Exercise Price, in addition to those required by this Section 4, as it in its discretion shall deem to be advisable in order that any stock dividend, subdivision of shares or distribution of rights to purchase stock or securities convertible or exchangeable for stock hereafter made by the Company to its stockholders shall not be taxable.
or other disposition and of said provisions so proposed to be made, shall be mailed to the Holders of the Warrants not less than 20 days prior to such event. The provisions of this Section 6 shall similarly apply to successive reorganizations, reclassifications, consolidations, mergers, sales, transfers or other dispositions, each of which transactions shall also constitute a Fundamental Transaction.
to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice.
Fundamental Transaction, dissolution or liquidation. The Company shall also give written notice to the Registered Holders at least 20 days prior to the date on which any Fundamental Transaction, dissolution or liquidation shall take place.
13. Governing Law. This Warrant and all rights, obligations and liabilities hereunder shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without giving effect to the principles of conflicts of law that would require the application of the laws of any other jurisdiction.
[Signature page follows]
The Company has caused this Warrant to be executed by its duly authorized officer as of , 201 .
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Xxxxxxxx, XX 00000 |
Exhibit A
FORM OF NOTICE OF EXERCISE
TO: AMICUS THERAPEUTICS, INC.
Reference is made to that certain Warrant to Purchase Common Stock, dated , 201 , No. of a series of similar Warrants to Purchase Common Stock (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
(1) The undersigned hereby elects to purchase shares of the common stock, par value $.01 (the “Common Stock”), of Amicus Therapeutics, Inc. (the “Company”) pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price in full, together with all applicable transfer taxes, if any.
(2) Please issue the certificate for shares of the Common Stock in the name of:
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(3) If such number of shares shall not be all the shares purchasable upon the exercise of the Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants remaining unexercised shall be registered in the name of and delivered to:
(4) The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
Please insert social security or other identifying number:
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Exhibit B
FORM OF ASSIGNMENT
(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
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NOTE: The signature to this Form of Assignment must correspond with the name as it appears on the face of the Warrant, without alteration or enlargement or any change whatever. Officers of corporations and those acting in a fiduciary or other representative capacity should file proper evidence of authority to assign the foregoing Warrant.
Exhibit D
FORM OF GUARANTEE
GUARANTEE (this “Guarantee”) dated as of , 201 by Amicus Therapeutics, Inc., a Delaware corporation with its principal place of business at 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (“Guarantor”) in favor of each of the Purchasers identified on the signatures pages hereto (each, including their successors and permitted assigns, the “Purchasers”).
WHEREAS, pursuant to the Note and Warrant Purchase Agreement dated as of February 19, 2016 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Note and Warrant Purchase Agreement”) among the Guarantor, the Purchasers and Amicus Therapeutics UK Limited, a private limited company incorporated under the laws of England and Wales with company number 05541527 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Xxxxxxxx Xxxxx, Xxxxxxxxxxxxxxx XX0 0XX Xxxxxx Xxxxxxx (“Amicus UK”), the Purchasers have agreed to purchase the Initial UK Notes and any Additional Notes issued by Amicus UK (collectively, the “Notes”) upon the terms and subject to the conditions set forth therein;
(a) Unless otherwise defined herein, terms defined in the Note and Warrant Purchase Agreement and used herein shall have the meanings given to them in the Note and Warrant Purchase Agreement.
(b) “Guarantee” shall mean this Guarantee, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
(c) As used herein, the term “Obligations” shall mean the obligations of Amicus UK and any of its successors and permitted assigns under the Notes, including (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, whether at maturity, by acceleration, redemption or otherwise.
(d) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Guarantee shall refer to this Guarantee as a whole and not to any particular provision of this Guarantee, and Section references are to Sections of this Guarantee unless otherwise specified. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
(e) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.
(a) Subject to the provisions of Section 2(b), Guarantor hereby, unconditionally and irrevocably, guarantees to the Purchasers, the prompt and complete payment when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations. This Guarantee shall in all respects be an irrevocable, absolute and unconditional guaranty of collection and not a payment.
(b) Anything herein or in any of the Notes or the Note and Warrant Purchase Agreement or any of the other Transaction Documents to the contrary notwithstanding, the maximum liability of Guarantor hereunder and under the Notes shall in no event exceed the amount that can be guaranteed by Guarantor under applicable laws relating to the insolvency of debtors.
Obligations, and notice of or proof of reliance by the Purchasers upon this Guarantee or acceptance of this Guarantee, and the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guarantee; and all dealings between Amicus UK and Guarantor, on the one hand, and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantee. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Amicus UK, any of its successors or permitted assigns, or Guarantor with respect to the Obligations. Guarantor understands and agrees that this Guarantee shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of the Note and Warrant Purchase Agreement, any other Transaction Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Purchasers, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to or be asserted by Amicus UK or any of its successors or permitted assigns against the Purchasers or (c) any other circumstance whatsoever (other than payment in full) that constitutes, or might be construed to constitute, an equitable or legal discharge of Amicus UK or its successors and permitted assigns for the Obligations, or of Guarantor under this Guarantee, in bankruptcy or in any other instance. This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Purchasers, and its successors, indorsees, transferees and assigns, until all the Obligations shall have been satisfied by payment in full and the Notes shall be terminated.
12. Amendments in Writing; No Waiver; Cumulative Remedies.
(a) Except as provided herein, none of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and the Purchasers.
(b) No failure to exercise, nor any delay in exercising, on the part of the Purchasers, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Purchasers of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Purchasers would otherwise have on any future occasion.
(c) The rights, remedies, powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.
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Acknowledged by
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Redmile Capital Fund, LP |
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By: Xxxxxx Xxxxx |
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Managing Member of the General Partner and the Investment Manager |
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Redmile Capital Offshore Fund, Ltd. |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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Redmile Capital Offshore Fund II, Ltd. |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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Redmile Special Opportunities Fund, Ltd. |
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By: Xxxxxx Xxxxx |
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Title: Managing Member of the Investment Manager |
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P Redmile Ltd. |
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By: Xxxxxx Xxxxx |
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As Managing Member of Redmile Group, LLC — Investment Adviser to P Redmile Ltd. |
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