EXHIBIT 10.7
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Amended
Agreement"), dated as of April 28, 2006, between AMICUS THERAPEUTICS, INC., a
Delaware corporation having an office at 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (the "Company"), and XXXX X. XXXXXXX, an individual residing at 00
Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000 ("Employee").
PREAMBLE
WHEREAS, effective January 6, 2005, the Company and the Employee
entered into that certain Employment. Agreement (the "Original Agreement") and
this Amended Agreement amends and restates the Original Agreement;
WHEREAS, since January 17, 2005, the Employee has served as the
Chief Executive Officer of the Company, and the Company desires to continue the
employment of Employee in the capacities of President and Chief Executive
Officer and Employee desires to continue such service, all pursuant to the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for ether good and valuable consideration, the sufficiency and
receipt whereof is hereby acknowledged, the parties agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, the following
terms shall have the following respective meanings:
"Cause" means for any of the following reasons: (i) willful or
deliberate misconduct by Employee that materially damages the Company; (ii)
misappropriation of Company assets; (iii) Employee's conviction of or a plea of
guilty or "no contest" to, a felony; or (iv) any willful disobedience of the
lawful and unambiguous instructions of the Board of Directors of the Company;
provided that the Board of Directors has given Employee thirty (30) days written
notice of such disobedience or neglect and Employee has failed to cure such
cause.
"Change in Control Event" means any of the following (i) any person
or entity (except for a current stockholder) becomes the beneficial owner of
greater than 50% of the then outstanding voting power of the Company; (ii) a
merger or consolidation with another entity where the voting securities of the
Company outstanding immediately before the transaction constitute less than a
majority of the voting power of the voting securities of the Company or the
surviving entity outstanding immediately after the transaction, or (iii) the
sale or disposition of all or substantially all of the Company's assets.
"Common Stock" means the common stock of the Company; par value $.01
per share.
"Effective Date" means January 17, 2005.
"Good Reason" means (i) a change in Employee's position with the
Company or its successor that materially reduces his title, duties, reporting
obligations or level of responsibility; or (ii) the relocation of the Company or
its successor greater than 25 miles away from the then current location of the
Company's principal offices, without the consent of Employee.
SECTION 2. Employment.
Subject to the terms and conditions of this Amended Agreement,
Employee is hereby employed by the Company to serve as its President and Chief
Executive Officer. Employee accepts such employment, and agrees to discharge all
of the duties normally associated with said positions, to faithfully and to the
best of his abilities perform such other services consistent with his position
as a senior executive officer as may from time to time be assigned to him by the
Board of Directors of the Company and to devote all of his business time, skill
and attention to such services. Notwithstanding the foregoing, however, Employee
may serve on the boards of directors of other companies, and in civic, cultural,
philanthropic and professional organizations so long as such service does not
detract from the performance of Employee's duties hereunder, such determination
to be made by the Board of Directors in its sole discretion. Employee may
continue service as an officer, U.S. Navy Reserve, and any periods of active
duty service shall not result in any reduction in compensation or benefits
payable to Employee under Section 3 of this Amended Agreement. At all times
during which Employee remains President and Chief Executive Officer of the
Company, Employee shall serve as a member of the Company's Board of Directors
and, at the request of the Company's Board of Directors, as an officer or
director of any Company affiliate, in each case without additional remuneration
therefor.
SECTION 3. Compensation and Benefits.
3.1 Base Salary. During the Employment Term (as defined in Section 5
hereof), the Company shall pay Employee a salary at the annual rate of $400,000
or such greater amount as the Company's Board of Directors may from time to time
establish pursuant to the terms hereof (the "Base Salary"). Such Base Salary
shall be reviewed annually and may be increased, but not decreased, by the Board
of Directors of the Company in its sole discretion. The Base Salary shall be
payable in accordance with the Company's customary payroll practices for its
senior management personnel.
3.2 Bonus. During the Employment Term, Employee shall be eligible to
participate in the Company's bonus programs in effect with respect to senior
management personnel. Employee shall be eligible to receive an annual target
bonus of up to 50% of the Base Salary in cash (the "Bonus").
3.3 Benefits
(a) Benefit Plans. During the Employment Term, Employee may
participate, on the same basis and subject to the same qualifications as other
senior management personnel of the Company, in any benefit plans (including
health and medical insurance of Employee, Employee's spouse and Employee's
dependents) and policies in effect with respect to senior management personnel
of the Company, including any stock option plan.
(b) Reimbursement of Expenses. During the Employment Term, the
Company shall pay or promptly reimburse Employee, upon submission of proper
invoices in accordance with the Company's normal procedures, for all reasonable
out-of-pocket business, entertainment and travel expenses incurred by Employee
in the performance of his duties hereunder.
(c) Medical Expenses. Effective May 1, 2006, the Company shall
secure and maintain during the Employment Term, at the expense of the Company,
an Executive Medical Reimbursement Contract with First Rehabilitation Life
Insurance Company of America, or a plan with another insurer providing
substantially similar benefits, covering Employee, Employee's spouse and
Employee's dependents (the "Health Plan Contract"). The Company shall reimburse
Employee for all out-of-pocket expenses (the "Out of Pocket Expenses") incurred
by Employee, Employee's spouse and
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Employee's dependents for ail "medical expenses" (as such term is defined in the
Internal Revenue Code of 1986, as amended (the "Code") and as interpreted by
federal courts) not otherwise reimbursed or covered under; (i) the Health Plan
Contract; (ii) any other existing health care insurance policy maintained by the
Company covering Employee, Employee's spouse and Employee's dependents; or (iii)
COBRA payments required to continue any health care insurance policies, if any,
currently covering Employee, Employee's spouse and Employee's dependents as of
the date of this Agreement, The amount of Out of Pocket Expenses to be
reimbursed to Employee: (x) shall be "grossed-up" such thai the Company shall
pay all Federal and state income taxes which the Employee shall incur as a
consequence of the Company's reimbursement of the Out of Pocket Expenses and the
grossing-up thereof; and (y) shall not exceed $220,000 (before grossing-up as
provided in (x) above). Employee shall submit reimbursement requests and the
Company shall reimburse Employee within the same framework and timeframe as
employees submit their business expense reimbursement requests. The
reimbursement of Out of Pocket Expenses for Employee's spouse and Employee's
dependents shall continue for a period of twelve (12) months following
Employee's death or Disability (as defined in Section 5.5).
(d) Vacation. During the Employment Term, Employee shall be
entitled to up to four (4) weeks of vacation in accordance with the policies of
the Company applicable to senior management personnel from time to time.
(e) Withholding. The Company shall be entitled to withhold
from amounts payable or benefits accorded to Employee under this Agreement all
federal, state and local income, employment and other taxes, as and in such
amounts as may be required by applicable law.
Section 4. Employment Term. The term of this Agreement (the "Employment
Term") shall sad on the close of business on the first anniversary of the date
of this Amended Agreement. The Employment Term shall be automatically extended
for additional one-year periods (each a "Renewal Period") unless, at least sixty
(60) days prior to the end of the expiration of the Employment Term, Employee
notifies the Board of Directors or the Board of Directors notifies Employee that
the notifying party does not wish to extend such Employment Term. Employee's
employment hereunder shall be coterminous with the Employment Term, unless
sooner terminated as provided in Section 5.
Section 5. Termination; Severance Benefits.
5.1 Generally. Either the Board of Directors of the Company or
Employee may terminate Employee's employment hereunder, for any reason, at any
time prior to the expiration of the Employment Term, upon sixty (60) days prior
written notice to the other party. Upon termination of Employee's employment
hereunder for any reason, Employee shall be deemed simultaneously to have
resigned as a member of the Board of Directors of the Company and from any other
position or office he may at the time hold with the Company or any of its
affiliates.
5.2 Termination by Employee.
(a) No Reason. If, prior to the expiration of the Employment
Term, Employee voluntarily resigns from his employment, other than for Good
Reason, Employee shall (i) receive no further Base Salary or Bonus hereunder,
other than accrued and unpaid Base Salary through and including the effective
date of termination of his employment with the Company (the "Accrued
Compensation") and (it) cease to be covered under or be permitted to participate
in or receive any of the benefits described in Section 3.3 hereof (provided,
however, that Employee shall be entitled to receive any benefits under Section
3.3 hereof to the extent such benefits have accrued through and including the
effective date of termination of his employment with the Company).
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(b) Good Reason. If, prior to the expiration of the Employment
Term, Employee terminates his employment hereunder for Good Reason, Employee
shall be entitled to receive an amount equal to Employee's then current Base
Salary, payable over eighteen (18) months in accordance with the Company's
customary payroll practices for its senior management personnel (the "Severance
Payment"), plus an amount equal to 1.5 (one and one-half) times the target Bonus
for the year in which such termination occurs (such amount being payable on the
effective date of the termination of Employee's employment with the Company),
plus any of the benefits under Section 3.3 hereof if and to the extent such
benefits have accrued through and including such effective date of termination
(such accrued benefits being payable on such effective date of the termination).
In addition, the vesting of the Options shall accelerate with respect to the
twelve (12) month period beginning on the date of Employee's effective date of
termination, and Employee shall continue to be covered under or be permitted to
participate in or receive the benefits described in paragraphs (a) and (c) of
Section 3.3 hereof for the period of time during which the Severance Payment is
payable to Employee.
5.3 Termination by the Company.
(a) Without Cause. If, prior to the expiration of the
Employment Term, the Company terminates Employee's employment hereunder without
Cause or if the Board of Directors of the Company gives written notice pursuant
to Section 4 hereof notifying Employee that the Board of Directors does not wish
to extend the Employment Term, then Employee shall be entitled to receive the
Severance Payment commencing upon the effective date of the termination of
Employee's employment with the Company, shall be entitled to receive (on such
effective date of termination) benefits under Section 3.3(b) hereof to the
extent such benefits have accrued through and including such effective date of
termination, shall continue to be covered under or be permitted to participate
in or receive the benefits described in paragraphs (a) and (c) of Section 3.3
hereof for the period of time during which the Severance Payment is payable to
Employee, and shall be paid (on such effective date of termination) an amount
equal to 1.5 (one and one-half) times the target Bonus for the year in which
such termination occurs. In addition, the vesting of the Options shall
accelerate with respect to the twelve (12) month period beginning on the date of
Employee's effective date of termination and Employee shall continue to be
covered under or be permitted to participate in or receive applicable Benefits
for the period of time during which the Severance Payment is payable to
Employee.
(b) For Cause. If, prior to the expiration of the Employment
Term, the Company terminates Employee's employment hereunder for Cause, Employee
shall (i) receive no further base Salary or Bonus hereunder, other than Accrued
Compensation which shall be payable on the effective date of the termination of
Employee's employment with the Company and (ii) cease to be covered under or be
permitted to participate in or receive any of the benefits described in Section
3.3 hereof; provided, however, that (A) Employee shall be entitled to receive
(on such effective date of termination) any benefits under Section 3.3 hereof to
the extent such benefits have accrued through and including such effective date
of termination, and (B) if Employee is terminated for Cause hereunder solely as
a result of being convicted of a felony, which conviction is ultimately reversed
on appeal or pardoned, Employee shall be deemed to have been terminated without
Cause as of the date of such termination for Cause.
5.4 Termination in Connection with a Change in Control Event. If,
prior to the expiration of the Employment Term, Employee resigns for Good Reason
or the Company terminates Employee's employment hereunder without Cause, or if
the Board of Directors of the Company gives written notice pursuant to Section 4
hereof notifying Employee that the Board of Directors does not wish to extend
the Employment Term, in each case within: (a) three (3) months prior to, or (b)
twelve (12) months following, the occurrence of a Change in Control Event,
Employee shall be entitled to receive an amount equal to two (2.0) times
Employee's then current Base Salary, payable over twenty-four (24)
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months, commencing upon the effective date of the termination of Employee's
employment with the Company, in accordance with the Company's customary payroll
practices for its senior management personnel (the "Change in Control Severance
Payment"), plus an amount equal to two (2.0) times the target Bonus for the year
in which such resignation or termination occurs (such amount being payable on
such effective date of termination), plus any of the benefits under Section 3.3
hereof if and to the extent such benefits have accrued through and including
such effective date of termination (such accrued benefits being payable on such
effective date of the termination). In addition, the Options shall vest in full,
any vesting requirements for any restricted stock grants shall lapse and
Employee shall continue to be covered under or be permitted to participate in or
receive the benefits described in paragraphs (a) and (c) of Section 3.3 hereof
for the period of time during which the Change in Control Severance Payment is
payable to Employee.
5.5 Termination upon Death or Disability. Employee's employment
hereunder shall termination upon death of Employee. The Company may terminate
Employee's employment hereunder in the event Employee is disabled and such
disability continues for more than 180 days. "Disability" shall be defined as
the inability of Employee to render the services required of him, with or
without a reasonable accommodation, under this Agreement as a result of physical
or mental incapacity. In the event of death or termination by the Company due to
disability of Employee, the Company shall continue to pay to Employee or
Employee's estate, the compensation required under Section 3, for a period of
twelve (12) months.
5.6 Release Required. In order to receive the Severance Payment or
the Change in Control Severance Payment, and other benefits under Section 5
hereof, including the acceleration of vesting of the Options, Employee must
execute and deliver to the Company a release, the form and substance of which
are acceptable to the Company.
Section 6. Federal Excise Tax.
6.1 General Rule. Employee's payments and benefits under this
Agreement and all other arrangements or programs related thereto shall not, in
the aggregate, exceed the maximum amount that may be paid to Employee without
triggering golden parachute penalties under Section 280G of the Code, and the
provisions related thereto with respect to such payments. If Employee's benefits
must be cut back to avoid triggering such penalties, Employee's benefits will be
cut back in the priority order Employee designates or, if Employee fails to
promptly designate an order, the priority order designated by the Company. If an
amount in excess of the limit set forth in this Section is paid to Employee,
Employee must repay the excess amount to the Company upon demand, with interest
at the rate provided in Code Section 1274(b)(2)(B). Employee and the Company
agree to cooperate with each other reasonably in connection with any
administrative or judicial proceedings concerning the existence or amount of
golden parachute penalties on payments or benefits Employee receives.
6.2 Exception. Section 6.1 shall apply only if it increases the net
amount Employee would realize from payments and benefits subject to Section 6.1,
after payment of income and excise taxes by Employee on such payments and
benefits.
6.3 Determinations. The determination of whether the golden
parachute penalties under Code Section 280G and the provisions related thereto
shall be made by counsel chosen by Employee and reasonably acceptable to the
Company. All other determinations needed to apply this Section 6 shall be made
in good faith by the Company's independent auditors.
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Section 7. General.
7.1 Confidentiality and Non-Competition Agreement. Employee and the
Company hereby ratify and re-affirm that certain Confidentiality and
Non-Competition Agreement dated January 26, 2005 (the "Confidentiality
Agreement").
7.2 No Conflict. Employee represents and warrants that he has not
entered, nor will he enter, into any other agreements that restrict his ability
to fulfill his obligations under this Agreement and the Confidentiality
Agreement.
7.3 Governing Law. This Agreement shall be construed, interpreted
and governed by the laws of the State of New Jersey, without regard to the
conflicts of law rules thereof.
7.4 Binding Effect. This Agreement shall extend to and be binding
upon Employee, his legal representatives, heirs and distributes and upon the
Company, its successors and assigns regardless of any change in the business
structure of the Company.
7.5 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder shall be assigned or delegated by any party without the
prior written consent of the other party.
7.6 Entire Agreement. Except for any stock option or stock award
agreements between the parties, this Agreement contains the entire agreement of
the parties with respect to the subject matter hereof. No waiver, modification
or change of any provision of this Agreement shall be valid unless in writing
and signed by both parties.
7.7 Waiver. The waiver of any breach of any duty, term or condition
of this Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Agreement.
7.8 Severability. If any provision of this Agreement shall be
unenforceable in any jurisdiction in accordance with its terms, the provision
shall be enforceable to the fullest extent permitted in that jurisdiction and
shall continue to be enforceable in accordance with its terms in any other
jurisdiction and the validity, legality and enforceability of the remaining
provisions contained herein shall not be affected thereby.
7.9 Conflicting Agreements. In the event of a conflict between this
Agreement and any other agreement between Employee and the Company, the terms
and provisions of this Agreement shall control.
7.10 Resolution of Disputes. Any claim or controversy arising out
of, or relating to, this Agreement, other than with respect to the
Confidentiality Agreement, between Employee and the Company (or any officer,
director, employee or agent of the Company), or the breach thereof, shall be
settled by arbitration administrated by the American Arbitration Association
under its National Rules for the Resolution, of Employment Disputes. Such
arbitration shall be held in New Jersey (or in such other location as the
Company may at the time be headquartered). The arbitration shall be conducted
before a three-member panel. Within fifteen (15) days after the commencement of
arbitration, each party shall select one person to act as arbitrator and the two
selected shall select a third arbitrator within ten (10) days of their
appointment.
If the arbitrators selected by the parties are unable or fail to
agree upon the third arbitrator, the third arbitrator shall be selected by the
American Arbitration Association and shall be a
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member of the bar of the State of New Jersey actively engaged in the practice of
employment law for at least ten years. The arbitration panel shall apply the
substantive laws of the State of New Jersey in connection with the arbitration
and the New Jersey Rules of Evidence shall apply to all aspects of the
arbitration. The award shall be made within thirty days of the closing of the
hearing. Judgment upon the award rendered by the arbitrators(s) may be entered
by any Court having jurisdiction thereof.
7.11 Notices. All notices pursuant to this Agreement shall be in
writing and shall be sent by prepaid certified mail, return receipt requested or
by recognized air courier service addressed as follows:
(i) If to the Company to:
Amicus Therapeutics, Inc.
0 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
(ii) If to Employee to:
Xxxx X. Xxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
or to such other addresses as may hereinafter be specified by notice in writing
by either of the parties, and shall be deemed given three (3) business days
after the date so mailed or sent.
7.12 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but all of which shall together
constitute one and the same agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
/s/ Xxxx X. Xxxxxxx
--------------------------------
XXXX X. XXXXXXX
AMICUS THERAPEUTICS, INC.
By: /s/ P. Xxxxxxxx Xxxx
---------------------------
Name: P. XXXXXXXX XXXX
Title: CHAIRMAN, COMPENSATION COMMITTEE
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