Exhibit 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of
September 11, 2006, between AMICUS THERAPEUTICS, INC., a Delaware corporation
having an office at 6 Cedar Brook Drive, Cranbury, New Jersey 08512 (the
"Company"), and DONALD J. HAYDEN, an individual residing at 9 Larkspur Lane,
Newtown, Pennsylvania 18940 ("Employee").
PREAMBLE
WHEREAS, the Employee has served as Chairman of the Board of
Directors of the Company since February 28, 2006 and to date has provided no
services to the Company other than service as Chairman;
WHEREAS, the Company's President and Chief Executive Officer has
been called to active duty military service for a period anticipated to end
February 23, 2007;
WHEREAS, the Company desires to engage Employee to serve in the
capacities of Interim President and Chief Executive Officer in addition to his
service as Chairman of the Board of Directors and Employee desires to perform
the duties of such offices, all pursuant to the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and for other good and valuable consideration, the sufficiency
and receipt whereof is hereby acknowledged, the parties agree as follows:
SECTION 1. Employment.
1.1 Duties. Subject to the terms and conditions of this
Agreement, Employee is hereby employed by the Company to serve as its Interim
President and Chief Executive Officer. Employee accepts such employment, and
agrees to discharge all of the duties normally associated with the positions of
Interim President and Chief Executive Officer, 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 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. At all times during
which Employee remains Interim President and Chief Executive Officer of the
Company, Employee shall serve, at the request of the Company's Board of
Directors, as an officer or director of any Company affiliate without additional
remuneration therefor. Employee also serves as Chairman of the Board of
Directors of the Company, but such service is not governed by the terms of this
Agreement.
1.2 Time Commitment. Employee shall be present for duties at the
Company's principal offices no less than two (2) days per week (inclusive of
days in which Employee travels on reasonable and necessary Company business).
SECTION 2. Compensation and Benefits.
2.1 Base Salary. During the Employment Term (as hereinafter
defined), the Company shall pay Employee a salary at the annual rate of $200,000
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 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.
2.2 Bonus. Upon successful completion of the Employment Term, Employee
shall be eligible to receive a bonus (the "Bonus") in such amount as determined
by the Board of Directors in its sole discretion.
2.3 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. Without limiting the
foregoing, at such time as the Company has increased the number of shares
authorized for grant under the Company's 2002 Equity Incentive Plan, Employee
shall be granted incentive stock options (the "Options") to purchase 100,000
shares of common stock at a purchase price of $1.09 per share. Subject to the
terms of Section 4 hereof, the Options shall vest in full at the end of the
Employment Term.
(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) Vacation. During the Employment Term, Employee shall be entitled
to up to two (2) calendar weeks of vacation (inclusive of business days in
which Employee is not at the Company's principal offices or is not performing
Company duties) every six (6) months during the Employment Term in accordance
with the policies of the Company applicable to senior management personnel from
time to time. Vacation week(s), to the extent not used in the first six (6)
months, may be carried over to the second six (6) months. Unused vacation may
not extend to the Employment Term or result in additional compensation upon
termination of this Agreement.
(d) 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 3. Employment Term. The term of this Agreement (the "Employment
Term") shall commence on the date of this Agreement and shall terminate on the
earlier to occur of: (a) the close of business on the day John F. Crowley's
active duty military service terminates; or (b) September 11, 2007. Employee's
employment hereunder shall be coterminous with the Employment Term, unless
sooner terminated as provided in Section 4.
SECTION 4. Termination; Severance Benefits.
4.1 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 thirty (30) days prior
written notice to the other party. Termination of Employee's employment
hereunder for any reason shall have no effect on Employee's status as Chairman
of the Board of Directors of the Company. Such termination shall,
however, result in an automatic
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termination of Employee's service in any other position or office he may at the
time hold with the Company or any of its affiliates.
4.2 Termination by Employee. If, prior to the expiration of the Employment
Term, Employee voluntarily resigns from his employment, 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 (ii) cease to
be covered under or be permitted to participate in or receive any of the
benefits described in Section 2.3 hereof (provided, however, that Employee
shall be entitled to receive any benefits under Section 2.3 hereof to the
extent such benefits have accrued through and including the effective date of
termination of his employment with the Company).
4.3 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,
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 2.3(b) hereof to the extent such benefits have accrued
through and including such effective date of termination and shall continue to
be covered under or be permitted to participate in or receive the benefits
described in Section 2.3(a) hereof for the period of time during which the
Severance Payment is payable to Employee. In addition, the Options shall vest
in full 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. "Cause", as used in this Agreement, 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.
(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 dated 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 2.3 hereof; provided, however, that (A) Employee shall be entitled to
receive (on such effective date of termination) any benefits under Section 2.3
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.
4.4 Termination upon Death or Disability. Employee's employment hereunder
shall terminate 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 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 the Employee, the Company shall continue to pay to Employee or
Employee's estate, as the case may be, the compensation required under Section
2, for a period of two (2) months.
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4.5 Release Required. In order to receive the Severance Payment, and
other benefits under Section 4 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 5. General.
5.1 Confidentiality and Non-Competition Agreement. Contemporaneously
herewith, Employee and the Company are entering into that certain
Confidentiality and Non-Competition Agreement (the "Confidentiality Agreement"),
the terms of which are incorporated herein by reference and made a part hereof.
5.2 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.
5.3 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.
5.4 Binding Effect. This Agreement shall extend to and be binding upon
Employee, his legal representatives, heirs and distributees and upon the
Company, its successors and assigns regardless of any change in the business
structure of the Company.
5.5 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.
5.6 Entire Agreement. Except for any stock option or stock award
agreements between the parties and the Confidentiality Agreement, 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.
5.7 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.
5.8 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.
5.9 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.
5.10 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
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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 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.
5.11 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.
6 Cedar Brook Drive
Cranbury, New Jersey 08512
(ii) If to Employee to:
Donald J. Hayden
9 Larkspur Lane
Newtown, Pennsylvania 18940
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.
5.12 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"EMPLOYEE": /s/ DONALD J. HAYDEN
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DONALD J. HAYDEN
"COMPANY": AMICUS THERAPEUTICS, INC.
By: /s/ Matthew Patterson
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Name: Matthew Patterson
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Title: COO
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