Exhibit 10.1
AMICUS THERAPEUTICS, INC.
2002 EQUITY INCENTIVE PLAN
1. Purpose.
The purpose of this plan (the "Plan") is to secure for Amicus
Therapeutics, Inc. (the "Company") and its stockholders the benefits arising
from capital stock ownership by employees and members of the Board of Directors
of, and consultants and advisors to, the Company and any Parent Corporation, or
Subsidiary (each as defined in Section 14 hereof), who are expected to
contribute to the Company's future growth and success.
2. Types of Awards and Administration.
(a) Types of Awards. Awards pursuant to this Plan shall be authorized by
action of the Board of Directors of the Company (or a Committee designated by
the Board of Directors) and may be (i) incentive stock options ("Incentive
Stock Options") to purchase shares of the Company's Common Stock, par value
$.01 per share ("Common Stock"), meeting the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), (ii) non-statutory
options to purchase shares of Common Stock, which are not intended to meet the
requirements of Code Section 422 ("Non-Statutory Stock Options" and, together
with Incentive Stock Options, "Options"), or (iii) shares of Common Stock
("Restricted Shares" and, together with "Options", "Awards").
(b) Administration. This Plan will be administered by the Board of
Directors of the Company, whose construction and interpretation of the terms
and provisions hereof shall be final and conclusive. The Board of Directors may
in its sole discretion make Awards and authorize the Company to issue shares of
Common Stock pursuant to such Awards, as provided in, and subject to the terms
and conditions of, this Plan. The Board of Directors shall have authority,
subject to the express provisions of this Plan, to construe this Plan and the
respective written agreements setting forth the terms and conditions of an
Award (each, an "Award Agreement"), to prescribe, amend and rescind rules and
regulations relating to this Plan, to determine the terms and provisions of
Award Agreements, which need not be identical, to advance the lapse of any
waiting, forfeiture or installment periods and exercise dates, and to make all
other determinations in the judgment of the Board of Directors necessary or
desirable for the administration of this Plan. The Board of Directors may
correct any defect or supply any omission or reconcile any inconsistency in
this Plan or in any Award Agreement in the manner and to the extent it shall
deem expedient to carry this Plan into effect and it shall be the sole and
final judge of such expediency. No director shall be liable for any action or
determination taken or made in good faith under or with respect to this Plan or
any Award.
(c) Delegation of Authority. The Board of Directors may, to the full
extent permitted by law, delegate any or all of its powers under this Plan to a
committee (the "Committee") of two or more directors, and if the Committee is
so appointed all references to the Board of Directors in this Plan shall mean
and relate to such Committee to the extent of the powers so delegated. The
Board of Directors may, from time to time, delegate to the Chief Executive
Officer authority
under this Plan with respect to aggregate numbers of shares to permit specific
Awards by the Chief Executive Officer to employees and consultants of, and
advisors to, the Company, any Parent Corporation or any Subsidiary.
3. Eligibility.
Awards shall be made only to persons who are, at the time of grant,
officers, employees or directors of, or consultants or advisors to, (provided,
in the case of Incentive Stock Options, such directors or officers are then
also employees of) the Company or any Parent Corporation or Subsidiary. A
person who has been granted an Award may, if such person is otherwise eligible,
be granted an additional Award or Awards if the Board of Directors shall so
determine.
4. Stock Subject to Plan.
Subject to adjustment as provided in Sections 10 and 11 hereof, the
maximum number of shares of Common Stock of the Company which may be issued and
sold pursuant to Awards made under this Plan is 862,611 shares. Such shares may
be authorized and unissued shares or may be shares issued and thereafter
acquired by the Company. If either (i) Restricted Shares are forfeited
following their award under this Plan, or (ii) Options granted under this Plan
are canceled, or expire or terminate for any reason without having been
exercised in full, the forfeited Restricted Shares, or the unpurchased shares
of Common Stock subject to any such Option, as the case may be, shall again be
available for subsequent Awards under this Plan. Restricted Shares, Options and
shares of Common Stock issuable upon exercise of Options granted under this
Plan may be subject to transfer restrictions, repurchase rights or other
restrictions as shall be determined by the Board of Directors.
5. Award Agreements.
As a condition to the grant of an Award under this Plan, each recipient of
an Award shall sign an Award Agreement not inconsistent with this Plan in such
form, and providing for such terms and conditions, as the Board of Directors
shall determine at the time such Award is authorized to be granted. Such Award
Agreements need not be identical but shall comply with, and be subject to, the
terms and conditions set forth herein.
6. Options Generally.
(a) Purchase Price. The purchase price per share of Common Stock
deliverable upon the exercise of (i) a Non-Statutory Stock Option may be less
than the fair market value of the Common Stock, and (ii) an Incentive Stock
Option may not be less than the fair market value of the Common Stock, as such
purchase price is determined by the Board of Directors on the date such Option
is authorized to be granted; provided, that in the event that the Common Stock
of the Company becomes registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and is publicly traded ("Publicly Traded"), the
fair market value of the Common Stock shall be equal to the closing price of
the Common Stock on the date such Option is authorized to be granted.
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(b) Payment of Exercise Price. Payment of the exercise price of an Option
shall be in cash or, in the sole discretion of the Board of Directors, in shares
of capital stock of the Company held by the Option holder for greater than six
months, or by any other lawful means. The Company may, in its sole discretion,
make loans to an Option holder in an amount equal to all or part of the exercise
price of Options held by such Option holder which such loans may be secured or
unsecured, as agreed upon between the parties at such time; provided, that the
grant of a loan on any occasion to one or more Option holder(s) shall not
obligate the Company to grant loans on any other occasion or to such or any
other Option holder.
(c) Option Term. Each Option and all rights thereunder shall expire on
such date as the Board of Directors shall determine on the date such Option is
authorized to be granted, but in no event may any Option remain in effect after
the expiration of ten years from the day on which such Option is granted (or
five years in the case of Options described in paragraph (b) of Section 7
hereof), and such Option shall be subject to earlier termination as provided in
this Plan.
(d) Exercise of Options. Each Option shall be exercisable either in full
or in installments at such time or times and during such period as shall be set
forth in the Award Agreement evidencing such Option; provided, however, that,
(i) no Option shall have a term in excess of ten years from the date of grant
(or five years in the case of Options described in paragraph (b) of Section 7
hereof), and (ii) the periods of time following an Option holder's cessation of
employment with the Company, any Parent Corporation or Subsidiary, or service as
a consultant or advisor to the Company, any Parent Corporation or Subsidiary, or
following an Option holder's death or disability, during which an Option may be
exercised, as provided in paragraph (f) below, shall not be included for
purposes of determining the number of shares of Common Stock with respect to
which such Option may be exercised.
(e) Rights as a Stockholder. The holder of an Option shall have no rights
as a stockholder with respect to any shares covered by the Option until the date
of issue of a stock certificate to such person for such shares. Except as
otherwise expressly provided in the Plan, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date such
stock certificate is issued.
(f) Effect of Cessation of Service. Notwithstanding anything contained in
this Plan to the contrary, no Option may be exercised unless, at the time of
such exercise, the recipient is, and has been continuously since the date of
grant of such recipient's Option, employed by or serving as a director,
consultant or an advisor to, one or more of the Company, a Parent Corporation or
a Subsidiary, except if and to the extent the applicable Award Agreement
provides otherwise (other than with respect to an Incentive Stock Option for
which Section 7 hereof shall apply); provided, however, that in no event may any
Option be exercised after the expiration date of the Option.
(g) Transfer Restrictions. Except as otherwise approved by the Board of
Directors, during the life of the holder thereof an Option shall be exercisable
only by or on behalf of such person and no Option granted under the Plan shall
be assignable or transferable by the person to whom it is granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution.
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(h) Other Awards. Awards of Options may be made alone, in addition to or in
tandem with Awards of Restricted Shares under the Plan.
7. Incentive Stock Options.
Options granted under the Plan which are intended to be Incentive Stock
Options shall be specifically designated as Incentive Stock Options and shall be
subject to the following additional terms and conditions:
(a) Dollar Limitation. The aggregate fair market value (determined as of
the respective date or dates of the grant) of the Common Stock with respect to
which Incentive Stock Options granted to any employee under the Plan (and under
any other incentive stock option plans of the Company, and any Parent
Corporation and Subsidiary) are exercisable for the first time shall not exceed
$100,000 in any one calendar year. In the event that Section 422 of the Code is
amended to alter the limitation set forth therein so that following such
amendment such limitation shall differ from the limitation set forth in this
paragraph (a), the limitation of this paragraph (a) shall be automatically
adjusted accordingly.
(b) 10% Stockholder. If any employee to whom an Incentive Stock Option is
to be granted under the Plan is at the time of the grant of such Option the
owner of stock possessing more than 10% of the total combined voting power of
all classes of stock of the Company or of any Parent Corporation or any
Subsidiary, then the following special provisions shall be applicable to the
Incentive Stock Option granted to such individual:
(i) the purchase price per share of Common Stock subject to such
Incentive Stock Option shall not be less than 110% of the fair market value
thereof at the time of grant; and
(ii) the exercise period of such Incentive Stock Option shall not
exceed five years from the date of grant.
Except as modified by the preceding provisions of this Section 7, all the
provisions of the Plan applicable to Options generally shall be applicable to
Incentive Stock Options granted hereunder.
(c) Effect of Cessation of Service. No Incentive Stock Option may be
exercised unless, at the time of such exercise, the holder of such Option is,
and has been continuously since the date of grant of such Incentive Stock
Option, employed by one or more of the Company, a Parent Corporation or
Subsidiary, except that if and to the extent the Award Agreement so provides:
(i) the Option may be exercised within the period of three months
after the date the holder of an Option ceases to be employed by the
Company, a Parent Corporation or a Subsidiary (or within such lesser period
as may be specified in the Award Agreement) for any reason other than death
or disability;
(ii) if the holder of an Option dies while in the employ of the
Company, a Parent Corporation or a Subsidiary or within three months after
such holder ceases to be such an employee, the Option may be exercised by
the person to whom it is transferred
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by will or the laws of descent and distribution within the period of one
year after the date of death (or within such lesser period as may be
specified in the Award Agreement); and
(iii) if the holder of an Option becomes disabled (within the meaning
of Section 22(e)(3) of the Code) while in the employ of the Company, a
Parent Corporation or a Subsidiary, the Option may be exercised within the
period of one year after the date the holder ceases to be an employee of
any of the foregoing entities because of such disability (or within such
lesser period as may be specified in the option agreement or instrument);
Except as modified by the preceding provisions of this Section 7, all the
provisions of the Plan shall be applicable to Incentive Stock Options granted
hereunder.
8. Restricted Shares.
(a) Awards of Shares. Awards of Restricted Shares may be made under this
Plan on such terms and conditions as the Board of Directors may from time to
time approve. Awards of Restricted Shares may be made alone, in addition to or
in tandem with Awards of Options under this Plan. Subject to the terms of this
Plan, the Board of Directors shall determine the number of Restricted Shares to
be awarded to each recipient and the Board of Directors may impose different
terms and conditions on a Restricted Share Award than on any other Award made to
the same recipient or other Award recipients. Each recipient of Restricted
Shares shall, except in the circumstances described in paragraph (b) below, be
issued one or more stock certificates evidencing such Restricted Shares. Each
such certificate shall be registered in the name of such recipient, and shall
bear an appropriate legend referring to the terms and conditions applicable to
the Restricted Shares evidenced thereby.
(b) Forfeiture of Restricted Shares. In making an Award of Restricted
Shares, the Board of Directors may impose a requirement that the recipient must
remain in the employment or service (including service as an advisor or
consultant) of the Company or any Parent Corporation or Subsidiary for a
specified minimum period of time, or else forfeit all or a portion of such
Restricted Shares. In the case of a holder of Restricted Shares whose
relationship with the Company or any Parent Corporation or Subsidiary changes
during the term of any applicable forfeiture period in a manner that does not
constitute a complete separation therefrom (for example, from employee to
consultant or director, or vise versa), the Board of Directors shall have
authority to determine whether or not such change constitutes a cessation of
employment or service for purposes of such requirement. In such case, the
certificate(s) evidencing the Restricted Shares shall be held in custody by the
Company until such Shares are no longer subject to forfeiture.
(c) Rights as a Stockholder; Stock Dividends. Subject to any restrictions
set forth in the applicable Award Agreement, a recipient of Restricted Shares
shall have voting, dividend and all other rights of a stockholder of the Company
as of the date such Shares are issued and registered in recipient's name
(whether or not certificates evidencing such Shares are delivered to such
recipient). Except as may otherwise be set forth in the applicable Award
Agreement, stock dividends issued with respect to Restricted Shares shall be
treated as additional Restricted
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Shares under the applicable Award Agreement and shall be subject to the same
terms and conditions that apply to the Restricted Shares with respect to which
such dividends are issued.
9. General Award Restrictions.
(a) Investment Representations. The Company may require any person to
whom an Award is made, as a condition of such Award, to give written assurances
in substance and form satisfactory to the Company to the effect that such
person is acquiring the Common Stock subject to the Award for such person's own
account for investment and not with any present intention of selling or
otherwise distributing the same, and to such other effects as the Company deems
necessary or appropriate in order to comply with applicable Federal and State
securities laws.
(b) Special Conditions to Issuance of Shares. Each Award shall be subject
to the requirement that, if at any time counsel to the Company shall determine
that the listing, registration or qualification of the shares of Common Stock
subject to such Award upon any securities exchange or under any State or
Federal law, or the consent or approval of any governmental or regulatory body,
is necessary as a condition of, or in connection with, the issuance or purchase
of such shares thereunder, such shares may not be issued unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board of Directors. Nothing herein
shall be deemed to require the Company to apply for or to obtain such listing,
registration or qualification.
10. Recapitalization.
In the event that the outstanding shares of Common Stock of the Company
are changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization, reclassification,
stock split, stock dividend, combination or subdivision, appropriate adjustment
shall be made in the number and kind of shares available under this Plan and
under any Options granted under this Plan. Such adjustment to outstanding
Options shall be made without change in the total exercise price applicable to
the unexercised portion of such Options, but a corresponding adjustment in the
applicable Option exercise price per share shall be made. No such adjustment
shall be made which would, within the meaning of any applicable provisions of
the Code, constitute a modification, extension or renewal of any Option or a
grant of additional benefits to the holder of an Option.
11. Reorganization of the Company.
In case (i) of any consolidation or merger involving the Company if the
shareholders of the Company immediately before such merger or consolidation do
not own, directly or indirectly, immediately following such merger or
consolidation, more than fifty percent (50%) of the combined voting power of
the outstanding voting securities of the corporation resulting from such merger
or consolidation in substantially the same proportion as their ownership of the
outstanding voting securities of the Company immediately before such merger or
consolidation; (ii) of any sale, lease, license, exchange or other transfer (in
one transaction or a series of related transactions) of all, or substantially
all, of the business and/or assets of the Company; or (iii) any person (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) shall become
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(x) the beneficial owner (within the meaning of Rule 13d-3 under the Exchange
Act) of over 50% of the combined voting power of the Company's then outstanding
voting securities entitled to vote generally or (y) a "controlling person" (as
defined in Rule 405 under the Securities Act of 1933, as amended) (a
"Controlling Person") of the Company (each of the events described in the
foregoing clauses (i), (ii) and (iii), a "Reorganization Event"), the Board of
Directors of the Company, or the board of directors of any corporation assuming
the obligations of the Company, shall, as to outstanding Options, either (x)
make appropriate provision for the protection of any such outstanding Options
by the substitution on an equitable basis of appropriate stock of the Company,
or of the merged, consolidated or otherwise reorganized corporation which will
be issuable in respect of the shares of Common Stock of the Company, provided
that no additional benefits shall be conferred upon holders of Options as a
result of such substitution, and the excess of the aggregate fair market value
of the shares subject to any Option immediately after such substitution over
the purchase price thereof is not more than the excess of the aggregate fair
market value of the shares subject to such Option immediately before such
substitution over the purchase price thereof, or (y) upon written notice to the
holders of Options, provide that all unexercised Options must be exercised
within a specified number of days of the date of such notice or they will be
terminated. In any such case, the Board of Directors may, in its discretion,
accelerate the exercise dates of outstanding Options, and the vesting dates of
any Restricted Shares subject to forfeiture.
12. No Special Employment Rights.
Nothing contained in this Plan or in any Award Agreement shall confer upon
any Award recipient any right with respect to the continuation of such person's
employment by the Company (or any Parent Corporation or Subsidiary) or
interfere in any way with the right of the Company (or any Parent Corporation
or Subsidiary), subject to the terms of any separate agreement to the contrary,
at any time to terminate such employment or to increase or decrease the
compensation of the Award recipient from the rate in existence at the time of
the Award. Whether an authorized leave of absence, or absence in military or
government service, shall constitute termination or cessation of employment for
purposes of this Plan or any Award shall be determined by the Board of
Directors.
13. Other Employee Benefits.
The amount of any compensation deemed to be received by an employee as a
result of any Award (including the exercise of an Option, or the sale of shares
of Common Stock received upon such exercise or of Restricted Shares) will not
constitute "earnings" with respect to which any other employee benefits of such
employee are determined, including without limitation benefits under any
pension, profit sharing, life insurance or salary continuation plan.
14. Definitions.
(a) Subsidiary. The term "Subsidiary" as used in this Plan shall mean any
corporation in an unbroken chain of corporations beginning with the Company if
each of the corporations other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain. For purposes
only of Awards of Non-Statutory Options or Restricted Shares, the
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term "Subsidiary" shall also mean any partnership or limited partnership of
which the Company or any Subsidiary controls 50% or more of the voting power, or
any corporation in an unbroken chain of Subsidiaries if each of the Subsidiaries
other than the last Subsidiary in the unbroken chain either owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations or controls 50% or more of the voting
power of any such partnership or limited partnership in such chain.
(b) Parent Corporation. The term "Parent Corporation" as used in this Plan
shall mean any corporation (other than the Company) in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
Company owns stock possessing 50% or more of the combined voting power of all
classes of stock in one of the other corporations in such chain.
(c) Employment. The term "employment", as used in this Plan and in any
Award Agreement, shall, unless the context otherwise requires, be defined in
accordance with the provisions of Section 1.421-7(h) of the Federal Income Tax
Regulations (or any successor regulations).
15. Amendment of this Plan.
The Board of Directors may at any time and from time to time modify, amend
or terminate this Plan in any respect, except to the extent stockholder approval
is required by law. The termination or any modification or amendment of this
Plan shall not, without the consent of an Award recipient, adversely affect such
Award recipient's rights under any Award Agreement unless such Agreement so
specifies. With the consent of the Award recipient affected, the Board of
Directors may amend outstanding Award Agreements in a manner not inconsistent
with this Plan. The Board of Directors shall have the right to amend or modify
the terms and provisions of this Plan and of any outstanding Incentive Stock
Options granted under this Plan to the extent necessary to qualify any or all
such Options for such favorable Federal income tax treatment (including deferral
of taxation upon exercise) as may be afforded incentive stock options under
Section 422 of the Code.
16. Withholding.
The Company's obligation to deliver Restricted Shares awarded, or shares
deliverable upon the exercise of any Option granted, under this Plan shall be
subject to the Award recipient's satisfaction of all applicable Federal, State
and local income and employment tax withholding requirements, and the Award
recipient shall elect to withhold only the minimum statutory taxes.
17. Duration of this Plan.
Unless earlier terminated by the Board of Directors, this Plan shall
terminate upon the earlier of (i) the close of business on April 22, 2012 or
(ii) the date on which all shares available for issuance under this Plan shall
have been issued as Restricted Shares or pursuant to the exercise of Options
granted under this Plan and/or are no longer subject to forfeiture pursuant to
the terms of any applicable Award Agreement. If the date of termination is
determined under
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(i) above, then Awards outstanding on such date shall continue to have force and
effect in accordance with the provisions of the Award Agreements evidencing such
Awards.
Adopted on April 22, 2002 by the
Board of Directors and approved by
stockholders on July 30, 2002.
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THE FOLLOWING RESOLUTIONS WERE ADOPTED AT A MEETING OF THE BOARD OF DIRECTORS OF
AMICUS THERAPEUTICS, INC. ON FEBRUARY 28, 2006:
Stock Option Plan
RESOLVED, that the Company's 2002 Equity Incentive Plan (the "Plan") be
amended by increasing the number of shares of Common Stock issuable under the
Plan to employees, officers, directors, consultants and agents of the Company to
17,500,000 shares; and be it further
RESOLVED, that the Company hereby reserve a total of 17,500,000 shares of
Common Stock for issuance under the Plan; and be it further
AMICUS THERAPEUTICS, INC.
AMENDMENT TO
2002 EQUITY INCENTIVE PLAN
AUGUST 2006
The 2002 Equity Incentive Plan of Amicus Therapeutics, Inc., as amended
(the "Plan"), shall be further amended as set forth herein. Except to the extent
specifically amended as set forth herein, the Plan shall remain in full force
and effect. All capitalized terms used herein without definition shall have the
definitions for such terms as set forth in the Plan.
1. Section 3 of the Plan is amended by adding the following sentence at
the end of the paragraph:
"Further, in no event shall the number of shares of Common Stock
covered by Awards granted to any one person in any one calendar year
(or portion of a year) ending after such date exceed twenty-five
percent (25%) of the aggregate number of shares of Common Stock
subject to this Plan."
2. As amended in February 2006, the first sentence of Section 4 of the
Plan now reads as follows (based upon the capitalization of the Company as of
May 8, 2006):
"Subject to adjustment as provided in Sections 10 and 11 hereof, the
maximum number of shares of Common Stock of the Company which may be
issued and sold pursuant to Awards (including pursuant to Incentive
Stock Options) made under this Plan is 17,500,000 shares." (emphasis
added)
3. Section 6 of the Plan is amended by adding the following phrase at
the end of the last sentence thereof:
"or, if no closing price is reported for that date, the closing
price on the next preceding date for which a closing price was
reported."
4. Section 9 of the Plan is amended by adding the following provisions
after subsection (b) thereof:
"(c) Violation of Law. Notwithstanding any other provision of the
Plan or the relevant Award Agreement, if, at any time, in the
reasonable opinion of the Company, the issuance of shares of Common
Stock covered by an Award may constitute a violation of law, then
the Company may delay such issuance and the delivery of a
certificate for such shares until (i) approval shall have been
obtained from such governmental agencies, other than the Securities
and Exchange Commission, as may be required under any applicable
law, rule, or regulation and (ii) in the case where such issuance
would constitute a violation of a law
administered by or a regulation of the Securities and Exchange
Commission, one of the following conditions shall have been
satisfied:
(A) the shares are at the time of the issue of such shares
effectively registered under the Securities Act; or
(B) the Company shall have determined, on such basis as it
deems appropriate (including an opinion of counsel in form and
substance satisfactory to the Company) that the sale,
transfer, assignment, pledge, encumbrance or other disposition
of such shares or such beneficial interest, as the case may
be, does not require registration under the Securities Act or
any applicable state securities laws.
(d) Corporate Restrictions on Rights in Stock. Any Common Stock to
be issued pursuant to Awards granted under the Plan shall be subject
to all restrictions upon the transfer thereof which may be now or
hereafter imposed by the Certificate of Incorporation and the
By-laws of the Company, each as amended and in effect from time to
time. Whenever Common Stock is to be issued pursuant to an Award, if
the Committee so directs at the time of grant (or, if such Award is
an Option, at any time prior to the exercise thereof), the Company
shall be under no obligation, notwithstanding any other provision of
the Plan or the relevant Award Agreement to the contrary, to issue
such shares until such time, if ever, as the recipient of the Award
(and any person who exercises any Option, in whole or in part),
shall have become a party to and bound by any agreement that the
Committee shall require in its sole discretion. In addition, any
Common Stock to be issued pursuant to Awards granted under the Plan
shall be subject to all stop-transfer orders and other restrictions
as the Committee may deem advisable under the rules, regulations and
other requirements of any stock exchange upon which the Common Stock
is then listed, and any applicable federal or state securities laws,
and the Committee may cause a legend or legends to be put on any
such certificates to make appropriate reference to such
restrictions.
(e) Investment Representations. The Company shall be under no
obligation to issue any shares covered by an Award unless the shares
to be issued pursuant to Awards granted under the Plan have been
effectively registered under the Securities Act or the holder of
such Award shall have made such written representations to the
Company (upon which the Company believes it may reasonably rely) as
the Company may deem necessary or appropriate for purposes of
confirming that the issuance of such shares will be exempt from the
registration requirements of that Act and any applicable state
securities laws and otherwise in compliance with all applicable
laws, rules and regulations, including but not limited to that the
holder of such Award is acquiring shares for his or her own account
for the purpose of investment and not with a view to, or for sale in
connection with, the distribution of any such shares.
(f) Registration. If the Company shall deem it necessary or
desirable to register under the Securities Act or other applicable
statutes any shares of Common Stock issued or to be issued pursuant
to Awards granted under the Plan, or to qualify any such shares of
Common Stock for exemption from the Securities Act or other
applicable statutes, then the Company shall take such action at its
own expense. The Company may require from each recipient of an
Award, or each holder of shares of Common Stock acquired pursuant to
the Plan, such information in writing for use in any registration
statement, prospectus, preliminary prospectus or offering circular
as is reasonably necessary for such purpose and may require
reasonable indemnity to the Company and its officers and directors
from such holder against all losses, claims, damage and liabilities
arising from such use of the information so furnished and caused by
any untrue statement of any material fact therein or caused by the
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light
of the circumstances under which they were made.
(g) Lock-Up. Without the prior written consent of the Company or the
managing underwriter in any public offering of shares of Common
Stock, no holder of an Award shall sell, make any short sale of,
loan, grant any option for the purchase of, pledge or otherwise
encumber, or otherwise dispose of, any shares of Common Stock during
the one hundred-eighty (180) day period commencing on the effective
date of the registration statement relating to any underwritten
public offering of securities of the Company. The foregoing
restrictions are intended and shall be construed so as to preclude
any holder of an Award from engaging in any hedging or other
transaction that is designed to or reasonably could be expected to
lead to or result in, a sale or disposition of any shares of Common
Stock during such period even if such shares of Common Stock are or
would be disposed of by someone other than such holder. Such
prohibited hedging or other transactions would include, without
limitation, any short sale (whether or not against the box) or any
purchase, sale or grant of any right (including without limitation
any put or call option) with respect to any shares of Common Stock
or with respect to any security that includes, relates to, or
derives any significant part of its value from any shares of Common
Stock. Without limiting the generality of the foregoing provisions
of this Section 9.5, if, in connection with any underwritten public
offering of securities of the Company, the managing underwriter of
such offering requires that the Company's directors and officers
enter into a lock-up agreement containing provisions that are more
restrictive than the provisions set forth in the preceding sentence,
then (a) each holder (regardless of whether or not such holder has
complied or complies with the provisions of clause (b) below) shall
be bound by, and shall be deemed to have agreed to, the same lock-up
terms as those to which the Company's directors and officers are
required to adhere; and (b) at the request of the Company or such
managing underwriter, each holder shall execute and deliver a
lock-up agreement in form and substance equivalent to that which is
required to be executed by the Company's directors and officers.
(h) Placement of Legends; Stop Orders; Etc. Each share of Common
Stock to be issued pursuant to Awards granted under the Plan may
bear a reference to the investment representations made in
accordance with Section 9.3 in addition to any other applicable
restrictions under the Plan, the terms of the Award and, if
applicable, under any agreement between the Company and any Optionee
and/or holder, and to the fact that no registration statement has
been filed with the Securities and Exchange Commission in respect to
such shares of Common Stock. All certificates for shares of Common
Stock or other securities delivered under the Plan shall be subject
to such stock transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of any stock exchange upon which the Common Stock is
then listed, and any applicable federal or state securities law, and
the Committee may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions.
(i) Tax Withholding. Whenever shares of Common Stock are issued or
to be issued pursuant to Awards granted under the Plan, the Company
shall have the right to require the recipient to remit to the
Company an amount sufficient to satisfy federal, state, local or
other withholding tax requirements if, when, and to the extent
required by law (whether so required to secure for the Company an
otherwise available tax deduction or otherwise) prior to the
delivery of any certificate or certificates for such shares. The
obligations of the Company under the Plan shall be conditional on
satisfaction of all such withholding obligations and the Company
shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the
recipient of an Award. However, in such cases holders may elect,
subject to approval of the Committee, acting in its sole discretion,
to satisfy an applicable withholding requirement, in whole or in
part, by having the Company withhold shares to satisfy their tax
obligations.
5. Section 15 of the Plan is amended by adding the following sentence
after the second sentence thereof:
"Subject to the foregoing, this Plan may be terminated, amended or
modified by the board of directors, and such termination, amendment
and/or modification shall apply to and govern each then outstanding
Award under this Plan."
THE FOLLOWING RESOLUTIONS WERE ADOPTED BY WRITTEN CONSENT OF THE BOARD OF
DIRECTORS OF AMICUS THERAPEUTICS, INC. ON SEPTEMBER 13, 2006:
Amendment of 2002 Equity Incentive Plan
RESOLVED, that effective upon the initial closing of the
transactions contemplated by the Transaction Documents (the "Initial Closing"),
the 2002 Equity Incentive Plan (the "Plan") is hereby amended to increase the
number of shares of Common Stock available for issuance thereunder to 20,500,000
shares of Common Stock; and be it further
RESOLVED, that the Designated Officers be, and each hereby is,
authorized and directed to solicit and obtain the approval of the stockholders
to such amendment of the Plan, and to take such further actions as are necessary
to effect the amendment to the Plan; and be it further
RESOLVED, that the Company hereby reserves a total of 20,500,000
shares of Common Stock for issuance under the Plan; and be it further