Exhibit 10.21
AMICUS THERAPEUTICS, INC.
RESTRICTED SHARE AWARD AGREEMENT
THIS RESTRICTED SHARE AWARD AGREEMENT (the "Award Agreement") is dated
this 8th day of March, 2007, by and between Amicus Therapeutics, Inc., a
Delaware corporation (the "Company"), and Xxxxx X. Xxxxxxxxxx (the "Recipient").
WHEREAS, on June 27, 2006, the Recipient was elected to the Board of
Directors of Company, and the terms of such service were set forth in an offer
letter (the "Offer Letter") of the same date;
WHEREAS, among the terms set forth in the Offer Letter was an award (the
"Award") of 100,000 shares of common stock, $.01 par value (the "Common Stock")
under the Amicus Therapeutics, Inc. 2002 Equity Incentive Plan (the "Plan"); and
WHEREAS, on September 13, 2006, the Company's Board of Directors ratified
such Award;
NOW, THEREFORE, in consideration of the foregoing and the mutual
obligations set forth herein, the Company and the Recipient agree as follows:
1. Award. The Award to the Recipient of restricted shares ("Restricted
Shares") of Common Stock is subject to the terms and conditions set forth in
this Restricted Share Award Agreement ("Award Agreement"), and the Plan. By
executing this Award Agreement, the Recipient agrees to be bound by all the
Plan's terms and conditions as if they had been set forth specifically herein.
Capitalized terms used but not otherwise defined herein are defined in the Plan.
2. Specific Terms. The Recipient's Restricted Shares have the following
terms:
Number of Restricted Shares Awarded: 100,000
Award Date: June 27, 2006
Vesting: The Restricted Shares shall vest
as follows:
2,778 shares shall vest on the
first day of each of the
thirty-five (35) calendar months
following the Award Date
2,770 shares shall vest and
become exercisable on June 1, 2009
Forfeiture: In the event that the Recipient is no longer in
service to the Company as a member of the Board of
Directors, any unvested Restricted Shares (including
dividends paid thereon), shall be automatically
forfeited (the "Forfeited Shares") and returned to the
Company for cancellation upon the effective day of
the end of the Recipient's service.
3. Issuance of Restricted Shares. The Company shall reflect the issuance
in the Recipient's name of all the Restricted Shares subject to the Award. Such
Restricted Shares shall be held in the custody of the Company or its designee
for the Recipient's account. The Restricted Shares shall be subject to the
restrictions set forth herein. Until applicable vesting restrictions lapse, any
certificates that the Recipient receives for Restricted Shares will include a
legend stating that they are subject to the restrictions set forth in the Plan
and this Award Agreement.
4. Stockholder Rights; Unvested Restricted Shares.
a. The Company will hold the Restricted Shares in escrow until
applicable vesting occurs, if ever. The Recipient must deliver to the
Company, coincident with the execution and delivery of this Award
Agreement, a stock power, endorsed in blank, for each certificate issued
and representing the Restricted Shares to enable the Company to return
and/or reissue such certificates as provided in this Award Agreement.
b. If an event causes the Recipient to forfeit any Restricted
Shares, the stock powers will be used to return the certificates for the
Forfeited Shares for cancellation. To the extent that a portion of a
certificate represents Forfeited Shares and shares which are not Forfeited
Shares, then the Company will reissue a certificate to the Recipient for
such number of shares of Common Stock which do not represent Forfeited
Shares and the stock powers shall be effective for such purpose.
c. Subject to this Award Agreement, as the owner of record of the
Restricted Shares, the Recipient's name will be reflected as such on the
Company's books and records, and the Recipient will be entitled to all
rights of a Company stockholder, including voting and dividend rights with
respect to the Restricted Shares; provided however, that dividends paid
with respect to those Restricted Shares, whether in cash or stock, that
have not vested at the time of the dividend payment shall themselves be
subject to the same restrictions, vesting and forfeiture conditions that
apply to the corresponding Restricted Shares.
5. Transfer Restrictions. No portion of the Restricted Shares may be
sold, transferred, assigned pledged or otherwise encumbered or disposed of by
the Recipient until such Restricted Shares have vested in accordance with
Section 1 hereof and then only in accordance with applicable securities laws
and any Company policy then in effect, should such policy then apply to the
Recipient. The Company shall not be required (i) to transfer on its books
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any Restricted Shares that have been sold or otherwise transferred in violation
of any provision of this Award Agreement, or (ii) to treat as owner of such
shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom the Recipient has attempted to transfer such shares.
6. Right of First Refusal. If the Recipient wishes to sell or otherwise
transfer any of the vested Restricted Shares, then at least 30 days prior to
any such transfer, the Recipient shall give notice to the Company (the
"Notice"). The Notice shall set forth (i) the number of Restricted Shares
proposed to be sold or transferred; (ii) the date or proposed date of the sale
or transfer; (iii) the identity of the proposed transferee; and (iv) the
principal terms of the transfer, including the cash or other property or
consideration to be received upon such transfer. The Company shall have the
right, but not the obligation, to purchase all, but not less than all, of the
Restricted Shares on the same terms specified in the Notice. Within 30 days
after receipt of the Notice, the Company shall give written notice (the
"Company Notice") to the Recipient stating whether or not it elects to exercise
its right to purchase the Restricted Shares and a date and time for consummation
of such purchase, not more than 10 days after the receipt by the Recipient of
the Company Notice. Failure by the Company to deliver a Company Notice within
such time period shall be deemed an election by the Company not to exercise its
right to purchase the Restricted Shares. If the Company does not exercise its
right to purchase the Restricted Shares, then the Recipient shall be free to
transfer the Restricted Shares on the terms provided in the Notice. Any
Restricted Shares not purchased within a period of 90 days of the Notice by the
proposed transferee in the Notice may not be sold or otherwise disposed of
until they are again offered to the Company under the procedures specified in
this Section 6. The Company's right of first refusal described in this Section
6 shall terminate upon the closing of an initial public offering of the
Company's Common Stock.
7. Restrictions on Public Sale by Recipient. In connection with any public
offering, the Recipient, if requested by the Company and the underwriters
managing such public offering, shall agree not to sell or otherwise transfer or
dispose of any Restricted Shares or other securities of the Company held by the
Recipient (other than those Restricted Shares or other securities, if any,
included in the public offering) for a specified period of time determined by
the Company and the underwriters following the effective date of a registration
statement with the Securities and Exchange Commission covering such public
offering (the "Registration Statement"); provided, however, that: (i) such
agreement shall not exceed 180 days from the effective date of such
registration; (ii) all other Restricted Holders enter into similar agreements;
provided, however, that all restrictions set forth in this Section 7 shall
terminate and be of no further force or effect if any other Restricted Holder
is released from, or otherwise no longer bound by, such restrictions; and (iii)
such agreement shall only apply to the first such Registration Statement
covering Common Stock of the Company to be sold on its behalf to the public in
an initial public offering of securities by the Company. For purposes of this
Section 7, "Restricted Holders" shall mean: (x) parties to that certain Third
Amended and Restated Investor Rights Agreement, dated September 13, 2006, by
and among the Company and the stockholders named therein, and (y) any officer
or director of the Company.
8. Effect of a Reorganization Event. Upon any Reorganization Event (as
defined in the Plan), all shares of Restricted Stock which were unvested at the
time of such Reorganization Event, shall immediately become vested.
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9. Taxes and Withholding. No later than the date as of which an amount
first becomes includible in the gross income of the Recipient for federal
income tax purposes with respect to any Restricted Shares, the Recipient shall
pay to the Company, or make arrangements satisfactory to the Company regarding
the payment of, all federal, state, local and foreign taxes that are required
by applicable laws and regulations to be withheld with respect to such amount.
Notwithstanding anything to the contrary contained herein, the Recipient may
discharge this withholding obligation by directing the Company to withhold
Restricted Shares with a value on a vesting date equal to the minimum
withholding obligation in connection with such vesting. The Company shall, to
the extent permitted by law, have the right to deduct any such taxes from the
delivery of the Restricted Shares that gives rise to the withholding
requirement.
10. Representations. The Recipient represents, warrants and covenants to
the Company that:
a. The Restricted Shares are being acquired for the Recipient's
account for investment only and not with a view to, or for sale in
connection with, any distribution of the Restricted Shares in violation of
the Securities Act of 1933, as amended, or any rule or regulation
thereunder.
b. The Recipient has had such opportunity as he or she has deemed
adequate to obtain from representatives of the Company such information as
is necessary to permit the Recipient to evaluate the merits and risks of an
investment in the Company.
c. The Recipient is able to bear the economic risk of holding such
Restricted Shares for an indefinite period.
d. The Recipient understands that (i) the Restricted Shares will not
be registered under the Securities Act and are "restricted securities"
within the meaning of Rule 144 under the Securities Act; (ii) the
Restricted Shares cannot be sold, transferred or otherwise disposed of
unless they are subsequently registered under the Securities Act or an
exemption from registration is then available; (iii) in any event, the
exemption from registration under Rule 144 will not be available for at
least one year and even then will not be available unless a public market
then exists for the Company's Common Stock, adequate information concerning
the Company is then available to the public, and other terms and conditions
of Rule 144 are complied with; and (iv) the Company has no obligation or
current intention to register any Restricted Shares acquired pursuant to
this Award under the Securities Act.
e. The Recipient hereby represents that the Recipient has obtained
appropriate legal or tax advice with respect to the tax consequences to the
Recipient of the Award.
f. All stock certificates representing Restricted Shares issued to
the Recipient shall have affixed thereto legends substantially in the
following form, in addition to any other legends required by applicable
state law:
THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO (1) REGISTRATION IN COMPLIANCE WITH SAID ACT
AND SUCH STATE LAWS, OR (2) AN OPINION OF COUNSEL FOR THE COMPANY TO THE
EFFECT THAT SUCH DISPOSITION WOULD NOT CONSTITUTE A VIOLATION OF ANY
RELEVANT FEDERAL OR STATE SECURITIES LAWS.
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST
REFUSAL AND RESTRICTIONS ON RESALE CONTAINED IN A RESTRICTED SHARE AWARD
AGREEMENT BETWEEN THE COMPANY AND THE HOLDER HEREOF. A COPY OF SUCH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF THE COMPANY.
11. Consent of Spouse/Domestic Partner. If the Recipient has a spouse or
domestic partner as of the date of this Award Agreement, the Recipient's spouse
or domestic partner shall execute a Consent of Spouse/Domestic Partner in the
form of Exhibit A hereto, effective as of the date hereof. Such consent shall
not be redeemed to confer or convey to the spouse or domestic partner any
rights in the Restricted Shares that do not otherwise exist by operation of law
or the agreement of the parties. If the Recipient subsequent to the date
hereof, marries, remarries or applies to the Company for domestic partnership
benefits, the Recipient shall, not later than 60 days thereafter, obtain his or
her new spouse/domestic partner's acknowledgement of and consent to the
existence and binding effect of all restrictions contained in this Award
Agreement by having such spouse/domestic partner execute and deliver a Consent
of Spouse/Domestic Partner in the form of Exhibit A.
12. Miscellaneous.
a. This Award Agreement and any instruments delivered pursuant to this
Award Agreement shall be construed, interpreted and governed in accordance
with the laws of the State of New Jersey, without regard to the conflicts
of law rules thereof.
b. Any claim or controversy arising out of, or relating to, this Award
Agreement, other than with respect to any confidentiality agreement between
Recipient and the Company (or any officer, director, employee or agent of
the Company), or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its National
Rules for the Resolution of Employee Disputes. Such arbitration shall be
held in New Jersey (or in such other location as the Company may at time be
headquartered). The arbitration shall be conducted before a three-member
panel. Within fifteen (15) days after the commencement of arbitration, each
party shall select one person to act as arbitrator and the two selected
shall select a third arbitrator within ten (10) days of their appointment.
If the arbitrators selected by the parties are unable or fail to agree upon
the third arbitrator, the third arbitrator shall be selected by the
American Arbitration Association and shall be a member of the bar of the
State of New Jersey actively engaged in the practice of employment law for
at least ten years. The
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arbitration panel shall apply the substantive laws of the State of New Jersey
in connection with the arbitration and the New Jersey Rules of Evidence shall
apply to all aspects of the arbitration. The award shall be made within thirty
days of the closing of the hearing. Judgment upon the award rendered by the
arbitrator(s) may be entered by any Court having jurisdiction thereof.
c. This Award Agreement shall extend to, be binding upon and inure to the
benefit of the Recipient, his legal representatives, his heirs, successors and
assigns (subject, however, to the limitations set forth herein with respect to
the assignment of the Award, the Restricted Shares or rights herein) and upon
the Company, its successors and assigns regardless of any change in the business
structure of the Company, be it through spinoff, merger, sale of stock, sale of
assets or any other transaction and shall be construed in a manner that is
consistent with the provisions of the Plan.
d. This Award Agreement contains the entire agreement of the parties with
respect to the subject matter hereof. No waiver, modification or change of any
provision of this Award Agreement shall be valid unless in writing and signed
by both parties.
e. The waiver of any breach of any duty, term or condition of this Award
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or any other duty, term or condition of this
Award Agreement.
f. All notices pursuant to this Award Agreement will be in writing and
will be sent by personal delivery, telecopier, electronic mail or by prepaid
registered or certified mail, return receipt requested, addressed to the
parties hereto at the addresses set forth beneath their names on the signature
page hereto or to such other addresses as may hereafter be specified by like
notice in writing by either of the parties, and will be deemed given (i) upon
receipt if by personal delivery, (ii) on the day on which delivered if
delivered by telecopier (with confirmation of receipt (such receipt to be
established by acceptable protocol)), (iii) upon mailing if sent by registered
or certified mail or (iv) when transmitted if delivered by electronic mail
(with satisfactory evidence of transmittal (such evidence of transmittal to be
established by acceptable protocol)). Copies of all notices shall be sent to:
Amicus Therapeutics, Inc., 0 Xxxxx Xxxxx Xxxxx, Xxxxxxxx, XX 00000 Attention:
VP, Human Resources and Leadership Development, Telecopier No. 000-000-0000.
g. The headings of the sections of this Award Agreement are inserted for
convenience of reference only and will not be deemed to constitute a part
hereof or to affect the meaning hereof.
h. This Award Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which shall together constitute one and
the same agreement.
[SIGNATURE PAGE FOLLOWS]
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By the signature of the Recipient below, along with the signature of the
Company's authorized representative, the Recipient and the Company agree that
the Restricted Shares are awarded under and governed by the terms and conditions
of this Award Agreement and the Plan.
AMICUS THERAPEUTICS, INC.
Date: March 8, 2007 By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President & CEO
Address: 0 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
RECIPIENT'S ACCEPTANCE
The undersigned hereby accepts the foregoing Award Agreement and agrees to
the terms and conditions thereof. The undersigned hereby acknowledges receipt of
a copy of the Company's 2002 Equity Incentive Plan.
RECIPIENT
Date: March 8, 2007 By: /s/ Xxxxx X Xxxxxxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxxxxxx
Address: 00 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000
SSN#: ###-##-####
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EXHIBIT A
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, Xxxxxxxx Xxxxxxxxxx, spouse or domestic partner of Xxxxx Xxxxxxxxxx,
acknowledge that I have read the RESTRICTED SHARE AWARD AGREEMENT dated as of
_______(the "Award Agreement") to which this Consent is attached as Exhibit A
and that I know its contents. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Award Agreement. I am
aware that by its provisions the Restricted Shares granted to my spouse/domestic
partner pursuant to the Award Agreement are subject to forfeiture and that,
accordingly, I may be required to forfeit to Amicus Therapeutics, Inc. (the
"Company") any or all of the Restricted Shares of which I may become possessed
as a result of a gift from my spouse/domestic partner or a court decree and/or
any property settlement in any domestic litigation.
I hereby agree that my interest, if any, in the Restricted Shares subject
to the Award Agreement shall be irrevocably bound by the Award Agreement and
further understand and agree that any community property interest I may have in
the Restricted Shares shall be similarly bound by the Award Agreement.
I agree to the vesting and forfeiture provisions described in the Award
Agreement and I hereby consent to the forfeiture of the Restricted Shares to the
Company by my spouse/domestic partner or my spouse/domestic partner's legal
representative in accordance with the provisions of the Award Agreement.
Further, as part of the consideration for the Award Agreement, I agree that at
my death, if I have not disposed of any interest of mine in the Restricted
Shares by an outright bequest of the Restricted Shares to my spouse or domestic
partner, then the Company shall have the same rights against my legal
representative to exercise its rights to the Restricted Shares with respect to
any interest of mine in the Restricted Shares as it would have had pursuant to
the Award Agreement if I had acquired the Restricted Shares pursuant to a court
decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the ________ day of _________________,200_.
Date: _________________________ /s/ Xxxxxxxx Xxxxxxxxxx
_____________________
Xxxxxxxx Xxxxxxxxxx
_____________________
Print Name
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, Xxxxxxxx Xxxxxxxxxx, spouse or domestic partner of Xxxxx Xxxxxxxxxx,
acknowledge that I have read the RESTRICTED SHARE AWARD AGREEMENT dated as of
___________ (the "Award Agreement") to which this Consent is attached as Exhibit
A and that I know its contents. Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Award Agreement. I am
aware that by its provisions the Restricted Shares granted to my spouse/domestic
partner pursuant to the Award Agreement are subject to forfeiture and that,
accordingly, I may be required to forfeit to Amicus Therapeutics, Inc. (the
"Company") any or all of the Restricted Shares of which I may become possessed
as a result of a gift from my spouse/domestic partner or a court decree and/or
any property settlement in any domestic litigation.
I hereby agree that my interest, if any, in the Restricted Shares subject
to the Award Agreement shall be irrevocably bound by the Award Agreement and
further understand and agree that any community property interest I may have in
the Restricted Shares shall be similarly bound by the Award Agreement.
I agree to the vesting and forfeiture provisions described in the Award
Agreement and I hereby consent to the forfeiture of the Restricted Shares to the
Company by my spouse/domestic partner or my spouse/domestic partner's legal
representative in accordance with the provisions of the Award Agreement.
Further, as part of the consideration for the Award Agreement, I agree that at
my death, if I have not disposed of any interest of mine in the Restricted
Shares by an outright bequest of the Restricted Shares to my spouse or domestic
partner, then the Company shall have the same rights against my legal
representative to exercise its rights to the Restricted Shares with respect to
any interest of mine in the Restricted Shares as it would have had pursuant to
the Award Agreement if I had acquired the Restricted Shares pursuant to a court
decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the ___________ day of ________________________, 2007.
Date: ___________________________
_______________________________________
/s/ Xxxxxxxx Xxxxxxxxxx
_______________________________________
Print Name Xxxxxxxx Xxxxxxxxxx
