Exhibit 10.1





Exhibit 10.1




Amicus has filed a registration statement (Registration Statement Number 333-158405) (including a prospectus)
with the SEC for this offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents Amicus has filed with the SEC that are incorporated by reference into the
prospectus for more complete information about Amicus and this offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, Amicus or the Placement Agent will arrange to send you the prospectus
upon your request by calling Leerink Swann LLC, toll free, at 1-800-808-7525, Ext. 4814.



Form of 




Subscription Agreement




February 25, 2010




Amicus Therapeutics, Inc.

6 Cedar Brook Drive

Cranbury, NJ 08512




Ladies and Gentlemen:




The undersigned (the “Investor”), hereby confirms and agrees with you as follows:



1. This Subscription Agreement (the “Agreement”) is made as of the date hereof between Amicus
Therapeutics, Inc., a Delaware corporation (the “Company”), and the Investor.



2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of [•] units (the “Units”), with each Unit consisting of (i) one share (each, a “Share” and
collectively, the “Shares”) of its common stock, par value $0.01 per share (the “Common Stock”),
and (ii) one warrant (each, a “Warrant” and collectively, the “Warrants”) to purchase 0.375 of a
share of Common Stock (and the fractional amount being the “Warrant Ratio”), in the form attached
hereto as Exhibit A, for a purchase price of $[•] per Unit (the “Purchase Price”).
Units will not be issued or certificated. The Shares and Warrants are immediately separable and
will be issued separately. The shares of Common Stock issuable upon exercise of the Warrants are
referred to herein as the “Warrant Shares” and, together with the Units, the Shares and the
Warrants, are referred to herein as the “Securities.” All capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in the Placement Agency Agreement
dated as of the date hereof by and between Leerink Swann LLC (the “Placement Agent”) and the
Company (the “Placement Agency Agreement”).



3. The offering and sale of the Units and the Warrant Shares (the “Offering”) are being made
pursuant to (i) an effective Registration Statement on Form S-3 (Registration No. 333-158405) (the
“Registration Statement”) filed by the Company with the Securities and Exchange Commission (the
“SEC”) and declared effective on May 27, 2009, which includes the base prospectus (the “Base
Prospectus”), (ii) if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended), that have been or will be provided to the
Investor on or prior to the date hereof (each, a “Delivered Free Writing Prospectus”) and (iii) a
final prospectus supplement (the “Prospectus Supplement” and together with the Base Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Units and terms of the
Offering that will be filed with the SEC and provided to the Investor along with the Company’s
counterpart to this Agreement or made available to the Investor by the filing by the Company of an
electronic version thereof with the SEC. The Registration Statement, the documents incorporated by
reference therein and all Delivered Free Writing Prospectuses are referred to herein collectively
as the “Disclosure Package.”


 


 









 





4. The Company and the Investor agree that the Investor will purchase from the Company, and
the Company will issue and sell to the Investor, the number of Units set forth below for the
aggregate
purchase price set forth below, pursuant to and subject to the Terms and Conditions for
Purchase of Units attached hereto as Annex I, which are incorporated herein by reference as
if fully set forth herein. Unless otherwise requested by the Investor no later than one (1)
business day after the execution of this Agreement by the Investor and agreed to by the Company,
the Shares included in the Units purchased by the Investor will be delivered by electronic
book-entry at The Depository Trust Company (“DTC”), registered in the Investor’s name and address
as set forth below and will be released by American Stock Transfer and Trust Company, the Company’s
transfer agent (the “Transfer Agent”), to the Investor at the Closing (as defined in the Terms and
Conditions for Purchase of Units). The executed Warrant included in the Units purchased by the
Investor shall be delivered in accordance with the terms thereof. The Investor acknowledges that
the Offering is not being underwritten by the Placement Agent and that there is no minimum offering
amount. The Investor understands and agrees that the Company, in its sole discretion, reserves the
right to accept or reject this subscription for Units, in whole or in part.



5. The Investor represents that, except as set forth below, (a) it has had no position, office
or other material relationship within the past three (3) years with the Company or persons known to
it to be affiliates of the Company, (b) it is not, and as of the Closing will not be, a member of
the Financial Industry Regulatory Authority or an Associated Person (as such term is defined under
the National Association of Securities Dealers Membership and Registration Rules Section 1011), and
(c) neither the Investor nor any group of Investors (as identified in a public filing made with the
SEC) of which the Investor is a part in connection with the Offering of the Units, acquired, or
obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a post-transaction basis.



Exceptions: ___________________________________




(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)



6. The Investor confirms that it has had full access to all filings made by the Company with
the SEC, including those portions of the Disclosure Package filed with the SEC, and that it was
able to read, review, download and print each such filing prior to or in connection with the
receipt of this Agreement along with the Delivered Free Writing Prospectus(es) and the Company’s
counterpart to this Agreement. On or promptly following the date hereof, the Company will file the
Prospectus Supplement with the SEC containing certain supplemental information regarding the
Company and the Offering.



[Remainder of page intentionally left blank. Signature pages follow.]




 


 









 







	 	 	 	 	 
	Number of Units:
	 	 	                    	 
	Purchase Price Per Unit:
	 	$	                    	 
	Aggregate Purchase Price:
	 	$	                    	 






Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.



Dated as of February 25, 2010




Investor




	 	 	 
	Name of Investor
	 	 






	 	 	 	 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Subscription Agreement]




 


 









 







	 	 	 	 	 
	Agreed to and accepted as of February 25, 2010:


Amicus Therapeutics, Inc.

 	 
	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Subscription Agreement]




 


 









 







Annex I

Terms and Conditions for Purchase of Units





A. Closings and Delivery of the Units and Funds.



1. Closing. The completion of the purchase and sale of the Units (the “Closing”) will occur at
a place and time (the “Closing Date”) to be specified by the Company and the Placement Agent, and
of which the Investor will be notified in advance by the Placement Agent. At the Closing, (a) the
Company will cause the Transfer Agent to deliver to the Investor the number of Shares set forth on
the signature page hereto registered in the name of the Investor or, if so indicated on the
Investor Questionnaire attached hereto as Exhibit B, in the name of a nominee designated by
the Investor, (b) the Company shall cause to be delivered to the Investor a Warrant to purchase a
number of whole Warrant Shares determined by multiplying the number of Shares set forth on the
signature page by the Warrant Ratio and rounding down to the nearest whole number and (c) the
aggregate purchase price for the Units being purchased by the Investor will be delivered by or on
behalf of the Investor to the Company.



2. Other Investors. The Company proposes to enter into substantially this same form of
Subscription Agreement with certain other investors (the “Other Investors”) and expects to complete
sales of Units to them.



3. Placement Agent Fee. The Investor acknowledges that the Company intends to pay the
Placement Agent a fee in respect of the sale of Units to the Investor.



4. Conditions to the Investor’s Obligations. The Investor’s obligation to purchase the Units
will be subject to the accuracy of the representations and warranties made by the Company and the
fulfillment of those undertakings of the Company to be fulfilled prior to the Closing Date,
including without limitation, those contained in the Placement Agency Agreement, and the condition
that the Placement Agent shall not have: (a) terminated the Placement Agency Agreement pursuant to
the terms thereof or (b) determined that the conditions to the closing in the Placement Agency
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Units that they have agreed to purchase from
the Company. The Investor understands and agrees that, in the event the Placement Agent in its
sole discretion determines that the conditions to closing in the Placement Agency Agreement have
not been satisfied or if the Placement Agency Agreement may be terminated for any other reason
permitted by the Placement Agency Agreement, then the Placement Agent may, but shall not be
obligated to, terminate the Placement Agency Agreement, which shall have the effect of terminating
this Agreement pursuant to Section I below.



5. Delivery of Funds. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount
of funds equal to the aggregate purchase price for the Units being purchased by the Investor to the
following account designated by the Company and the Placement Agent pursuant to the terms of that
certain Escrow Agreement (the “Escrow Agreement”) dated as of February 25, 2010, by and among the
Company, the Placement Agent and JPMorgan Chase Bank, N.A. (the “Escrow Agent”), unless the Company
and the Investor agree to an alternative arrangement for such payment:



	 	 	 
	JPMorgan Chase Bank, N.A. 


ABA Routing Number:
	 	021 000 021

	Account Number:
	 	865364558
	Account Name:
	 	JPM as EA for Amicus/Leerink






 


 









 





The Company agrees to indemnify and hold the Escrow Agent and the Placement Agent harmless from and
against any and all liabilities, obligations, damages, losses, encumbrances, costs, expenses and
claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”)
arising under this Section A(5) or otherwise with respect to the funds held in escrow
pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such
Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent or the
Placement Agent, respectively. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Escrow Agent or the Placement Agent be liable for any special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent or the Placement Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. Each of the Escrow Agent and the Placement Agent shall
be a third party beneficiary with respect to the covenants and agreements of the Investor contained
in this Section A(5).



6. Delivery of Shares. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall direct its prime broker at which
the account or accounts to be credited with the Shares being purchased by the Investor are
maintained, which prime broker shall be a DTC participant, to set up a Deposit/Withdrawal at
Custodian (“DWAC”) instructing the Transfer Agent to credit such account or accounts with the
Shares by means of an electronic book-entry delivery. Such DWAC shall indicate the settlement date
for the deposit of the Shares, which date shall be provided to the Investor by the Placement Agent.
Unless the Company and the Investor agree to an alternative arrangement for payment of the Purchase
Price for the Shares, upon receipt by the Company of the funds held in escrow pursuant to
Section A(5) above, the Company shall direct the Transfer Agent to credit the Investor’s
account or accounts with the Shares at the Closing pursuant to the information contained in such
DWAC.



7. Notice to Investors. IT IS THE INVESTOR’S RESPONSIBILITY TO (a) MAKE THE NECESSARY WIRE
TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (b) ARRANGE FOR SETTLEMENT BY
WAY OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR
THE UNITS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY
NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.



B. Representations, Warranties and Covenants of the Company.



1. The Company represents and warrants to the Investor that: (a) the Company has the full
right, power and authority to enter into this Agreement and the Warrants and to perform and to
discharge its obligations hereunder and thereunder; (b) this Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms; and (c) the Warrants have been duly authorized
and, when executed and delivered by the Company, will constitute a valid and binding obligation of
the Company enforceable in accordance with its terms, except, in the case of each of clauses (b)
and (c), (x) as limited by laws of general application relating to bankruptcy, insolvency and the
relief of debtors; (y) as limited by rules of law governing specific performance, injunctive relief
or other equitable remedies and by general principles of equity; and (z) to the extent any
indemnification provisions contained therein may further be limited by applicable laws and
principles of public policy.


 


 









 





2. The Company represents and warrants to, and covenants with, the Investor that the shares of
Common Stock and the Warrants to be issued and sold by the Company to the Investor under this
Agreement and the Warrant Shares have been duly authorized and, when issued and paid for in
accordance with the terms of this Agreement and the applicable Warrants, such shares of Common
Stock and the Warrants will be validly issued, fully paid and non-assessable and free of any
violation of statutory or contractual preemptive rights, resale rights, rights of first refusal or
similar rights.



3. The Company represents and warrants to the Investor that no approval, authorization,
consent or order of the stockholders of the Company is required under the applicable rules of
NASDAQ or otherwise in connection with the sale by the Company of the Units, the Warrant Shares or
the consummation by the Company of the transactions contemplated hereby.



4. The Placement Agency Agreement contains certain representations, warranties, covenants and
agreements of the Company that may be relied upon by the Investor, which shall be a third party
beneficiary thereof.



5. Notwithstanding any investigation made by any party to this Agreement or by the Investor,
all covenants, agreements, representations and warranties made by the Company herein will survive
the execution of this Agreement, the delivery to the Investor of the Units being purchased and the
payment therefor.



C. Representations, Warranties and Covenants of the Investor.



1. The Investor represents and warrants to, and covenants with, the Company that: (a) the
Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in securities presenting an investment decision like that
involved in the purchase of the Units, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Units, (b) the
Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection
with its decision to purchase the number of Units set forth on the Signature Page, has reviewed the
Disclosure Package and is relying only upon the Disclosure Package and the representations and
warranties of the Company contained herein.



2. The Investor acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company or the Placement Agent that would
permit an offering of the Units, or possession or distribution of offering materials in connection
with the issue of the Securities in any jurisdiction outside the United States where action for
that purpose is required. Each Investor outside the United States will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers
Securities or has in its possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make and has not made any representation or use
of any information in connection with the issue, placement, purchase and sale of the Units, except
as set forth or incorporated by reference in the Disclosure Package.



3. The Investor further represents and warrants to, and covenants with, the Company that: (a)
the Investor has full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (b) this Agreement constitutes a valid
and
binding obligation of the Investor enforceable against the Investor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).


 


 









 





4. The Investor understands that nothing in this Agreement, the Prospectus or any other
materials in the Disclosure Package or otherwise presented to the Investor in connection with the
purchase and sale of the Units constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.



5. The Investor represents, warrants and agrees that, since the earlier to occur of (a) the
date on which the Placement Agent first contacted the Investor about the Offering and (b) the date
of this Agreement, it has not engaged in any transactions in the securities of the Company in
violation of securities laws (including, without limitation, any short sales involving the
Company’s securities). The Investor covenants that it will not engage in any transactions in the
securities of the Company (including short sales) prior to the time that the transactions
contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any
of the Securities acquired pursuant to this Agreement to cover any short position in the Common
Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “short
sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Securities Exchange Act of 1934 (the “Exchange Act”), whether or not
against the box, and all types of direct and indirect stock pledges, forward sales contracts,
options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h)
under the Exchange Act) and similar arrangements (including on a total return basis), and sales and
other transactions through non-US broker dealers or foreign regulated brokers.



6. Notwithstanding any investigation made by any party to this Agreement or by the Placement
Agent, all covenants, agreements, representations and warranties made by the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the Units being purchased
and the payment therefor. The Placement Agent shall be a third party beneficiary with respect to
covenants, agreements, representations and warranties of the Investor contained in this Section
C.



D. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.



E. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.



F. Severability. In case any provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.



G. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.



H. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered (including by fax or electronically) to the other parties.



I. Termination. In the event that the Placement Agency Agreement is terminated by the
Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further action
on the part of the parties hereto.


 


 









 





Exhibit A




Form of Warrant to Purchase Common Stock




AMICUS THERAPEUTICS, INC.




WARRANT TO PURCHASE COMMON STOCK




To Purchase                                          Shares of Common Stock




Warrant No.:                     




Date of Issuance: March __, 2010




VOID AFTER March __, 2014




THIS CERTIFIES THAT, for value received,                                         , or permitted registered assigns
(the “Holder”), is entitled, subject to the terms set forth below, to subscribe for and purchase at
the Exercise Price (defined below) from Amicus Therapeutics, Inc., a Delaware corporation (the
“Company”), up to                      shares of Common Stock, par value $.01 per share (the “Common Stock”),
of the Company. This warrant is one of a series of warrants issued by the Company as of the date
hereof (individually a “Warrant”; collectively, “Company Warrants”) pursuant to those certain
subscription agreements between the Company and each of the investors, each dated as of February
25, 2010 (each, a “Subscription Agreement”) and pursuant to a registration statement under the
Securities Act on Form S-3 (File No. 333-158405) (the “registration statement”), filed with the
United States Securities and Exchange Commission (the “Commission”) and declared effective on May
27, 2009.



1. DEFINITIONS. Capitalized terms used herein but not otherwise defined herein shall
have their respective meanings as set forth in the Subscription Agreement. As used herein, the
following terms shall have the following respective meanings:




(A) “Eligible Market” means any of the New York Stock Exchange, the American Stock
Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or The NASDAQ Capital
Market.




(B) “Exercise Period” shall mean the period commencing six (6) months after the date
hereof and ending four (4) years from the date hereof, unless sooner terminated as provided
below.




(C) “Exercise Price” shall mean $  per share, subject to adjustment pursuant to
Section 4 below.




(D) “Trading Day” shall mean (a) any day on which the Common Stock is listed or quoted
and traded on its primary Trading Market, (b) if the Common Stock is not then listed or quoted
and traded on any Eligible Market, then a day on which trading occurs on the OTC Bulletin
Board (or any successor thereto), or (c) if trading does not occur on the OTC Bulletin Board
(or any successor thereto), any business day.


 


 









 






(E) “Trading Market” shall mean the OTC Bulletin Board or any other Eligible Market, or
any national securities exchange, market or trading or quotation facility on which the Common
Stock is then listed or quoted.




(F) “Warrant Shares” shall mean the shares of the Common Stock issuable upon exercise of
this Warrant.



2. EXERCISE OF WARRANT. The rights represented by this Warrant may be exercised in
whole or in part at any time during the Exercise Period, by delivery of the following to the
Company at its address set forth on the signature page hereto (or at such other address as it may
designate by notice in writing to the Holder):




(A) an executed written notice, in the form attached hereto as Exhibit A (the
“Exercise Notice”); and




(B) payment of the Exercise Price either (i) in cash or by check or (ii) provided that
the conditions set forth in Section 2.1 are satisfied, pursuant to Section 2.1
below.



The Holder shall not be required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Notice of Exercise shall have the same effect as
cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase
the remaining number of Warrant Shares, if any.



Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the
Company to the Holder by crediting the account of the Holder’s prime broker with the Depository
Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system if the Company’s
transfer agent is a participant in such system, and otherwise by physical delivery to the address
specified by the Holder in the Exercise Notice, in each case within three (3) business days from
the delivery to the Company of the Exercise Notice and payment of the aggregate Exercise Price as
set forth above. This Warrant shall be deemed to have been exercised on the date the Exercise Price
is received by the Company.



The person in whose name any certificate or certificates for Warrant Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which payment of the Exercise Price was made, irrespective of the date such Warrant
Shares are credited to the DTC account of the Holder’s prime broker or the date of delivery of the
certificate or certificates evidencing such Warrant Shares, as the case may be, except that, if the
date of such payment is a date when the stock transfer books of the Company are closed, such person
shall be deemed to have become the holder of such shares at the opening of business on the next
succeeding date on which the stock transfer books are open.



Subject to Section 2.6 and the final sentence of this paragraph and to the extent permitted by
law, the Company’s obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder
or any other person or entity of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other person or entity, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. The Holder shall have the right to pursue any remedies
available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver
Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof.


 


 









 






2.1. NET EXERCISE. If during the Exercise Period (a) a registration statement
covering the Warrant Shares that are the subject of the Exercise Notice (the “Unavailable
Warrant Shares”), or an exemption from registration, is not available for the issuance and
resale of such Unavailable Warrant Shares, the Holder may, in its sole discretion or (b) the
Fair Market Value (as defined below) of one share of the Common Stock is greater than the
Exercise Price (at the date of calculation as set forth below), in lieu of exercising this
Warrant by payment of cash or by check, the Holder may effect a “net exercise” of this Warrant
in lieu of making the cash payment otherwise contemplated to be made to the Company upon such
exercise in payment of the Exercise Price, in which event, if so effected, the Holder shall
receive Warrant Shares equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by delivery of the properly endorsed Notice of Exercise at the
principal office of the Company, in which event the Company shall issue to the Holder a number
of shares of the Common Stock computed using the following formula (a “Net Exercise”):



	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	X =
	 	Y(A-B)
 

    A
	 	 






	 	 	 	 	 
	Where X

	 	=
	 	the number of Warrant Shares to be issued to the Holder.
	 
	 	 	 	 
	Y

	 	=
	 	the number of Warrant Shares with respect to which this
Warrant is being exercised (which shall include both the
number of Warrant Shares issued to the Holder and the number
of Warrant Shares subject to the portion of the Warrant
being cancelled in payment of the Exercise Price).
	 
	 	 	 	 
	A

	 	=
	 	the Fair Market Value (as defined below) of one share of the
Common Stock (at the date of such calculation).
	 
	 	 	 	 
	B

	 	=
	 	Exercise Price (as adjusted to the date of such calculation).







For purposes of this Warrant, the “Fair Market Value” of one share of the Common Stock shall
mean (i) the average of the closing sales prices for the shares of the Common Stock on The
NASDAQ Global Market or other Eligible Market where the Common Stock is listed or traded as
reported by Bloomberg Financial Markets (or a comparable reporting service of national
reputation selected by the Company and reasonably acceptable to the Holder if Bloomberg
Financial Markets is not then reporting sales prices of such security)
(collectively, “Bloomberg”) for the ten (10) consecutive trading days immediately prior to the
date of the exercise of the Warrant, or (ii) if an Eligible Market is not the principal
Trading Market for the shares of the Common Stock, the average of the reported sales prices
reported by Bloomberg on the principal Trading Market for the Common Stock during the same
period, or, if there is no sales price for such period, the last sales price reported by
Bloomberg for such period, or (iii) if neither of the foregoing applies, the last sales price
of such security in the over-the-counter market on the pink sheets for such security as
reported by Bloomberg, or if no sales price is so reported for such security, the last bid
price of such security as reported by Bloomberg, or (iv) if fair market value cannot be
calculated as of such date on any of the foregoing bases, the fair market value shall be as
determined by the Board of Directors of the Company in the exercise of its good faith
judgment.


 


 









 






2.2. ISSUANCE OF NEW WARRANTS. Upon any partial exercise of this Warrant, the
Company, at its expense, will forthwith and, in any event within five (5) business days, issue
and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of
the Holder, exercisable, in the aggregate, for the balance of the number of shares of the
Common Stock remaining available for purchase under this Warrant.




2.3. PAYMENT OF TAXES AND EXPENSES. The Company shall pay any recording, filing,
stamp or similar tax which may be payable in respect of any transfer involved in the issuance
of, and the preparation and delivery of certificates (if applicable) representing, (i) any
Warrant Shares purchased upon exercise of this Warrant and/or (ii) new or replacement warrants
in the Holder’s name or the name of any transferee of all or any portion of this Warrant;
provided, however, that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance, delivery or registration of any
certificates for Warrant Shares or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may arise as a result of holding
or transferring this Warrant or receiving Warrant Shares upon exercise hereof.




2.4. RULE 144. For purposes of Rule 144 promulgated under the Securities Act, as
in effect on the date hereof, it is intended that the Warrant Shares issued in a Net Exercise
shall be deemed to have been acquired by the Holder, and the holding period for the Warrant
Shares shall be deemed to have commenced, on the date this Warrant was originally issued
pursuant to the applicable Subscription Agreement.




2.5. DISPUTES. In the case of a dispute as to the determination of the Exercise
Price or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to
the Holder the number of Warrant Shares that are not disputed.




2.6. EXERCISE LIMITATIONS; HOLDER’S RESTRICTIONS. A Holder, other than an
Excluded Holder, shall not have the right to exercise any portion of this Warrant, pursuant to
Section 2 or otherwise, to the extent that after giving effect to such issuance after
exercise, such Holder (together with such Holder’s affiliates), as set forth on the applicable
Notice of Exercise, would beneficially own in excess of 9.9% of the number of shares of the
Common Stock outstanding


 


 









 






immediately after giving effect to such issuance. For purposes of this Section 2.6, the number of shares of the Common Stock
beneficially owned by such Holder and its affiliates shall include the number of shares of the
Common Stock issuable upon exercise of this Warrant with respect to which the determination of
such sentence is being made, but shall exclude the number of shares of the Common Stock which
would be issuable upon (A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by such Holder or any of its affiliates and (B) exercise or conversion of
the unexercised or nonconverted portion of any other securities of the Company (including,
without limitation, any other shares of the Common Stock or Warrants) subject to a limitation
on conversion or exercise analogous to the limitation contained herein beneficially owned by
such Holder or any of its affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 2.6, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), it
being acknowledged by a Holder that the Company is not representing to such Holder that such
calculation is in compliance with Section 13(d) of the Exchange Act and such Holder is solely
responsible for any schedules required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 2.6 applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by such Holder) and of
which a portion of this Warrant is exercisable shall be in the sole discretion of a Holder,
and the submission of a Notice of Exercise shall be deemed to be each Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by such Holder)
and of which portion of this Warrant is exercisable, in each case subject to such aggregate
percentage limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. For purposes of this Section 2.6, in determining the
number of outstanding shares of the Common Stock, a Holder may rely on the number of
outstanding shares of the Common Stock as reflected in (x) the Company’s most recent Form 10-Q
or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or
(z) any other notice by the Company or the Company’s transfer agent setting forth the number
of shares of the Common Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally and in writing to such Holder the number
of shares of the Common Stock then outstanding. In any case, the number of outstanding shares
of the Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by such Holder or its affiliates since the
date as of which such number of outstanding shares of the Common Stock was reported. The
provisions of this Section 2.6 may be waived by such Holder, at the election of such
Holder, upon not less than 61 days’ prior notice to the Company, and the provisions of this
Section 2.6 shall continue to apply until such 61st day (or such later
date, as determined by such Holder, as may be specified in such notice of waiver). For
purposes of this Section 2.6, an “Excluded Holder” shall mean a Holder (together with
such Holder’s affiliates) that beneficially owned in excess of 9.9% of the number of shares of
the Common Stock outstanding on the date this Warrant was issued to such Holder; provided,
however, that if thereafter such Holder (together with such Holder’s affiliates) shall
beneficially own 9.9% or a percentage less than 9.9% of the number of shares of the Common
Stock outstanding, then such Holder shall cease to be an “Excluded Holder” hereunder.


 


 









 





3. COVENANTS OF THE COMPANY.




3.1. COVENANTS AS TO WARRANT SHARES. The Company covenants and agrees that all
Warrant Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free
from all taxes, liens and charges with respect to the issuance thereof. The Company further
covenants and agrees that the Company will at all times during the Exercise Period have
authorized and reserved, free from preemptive rights, a sufficient number of shares of the
Common Stock to provide for the exercise of the rights represented by this Warrant. If at any
time during the Exercise Period the number of authorized but unissued shares of the Common
Stock shall not be sufficient to permit exercise of this Warrant, the Company will use its
commercially reasonable efforts to take such corporate action in compliance with applicable
law as may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of the Common Stock to such number of shares as shall be sufficient for such
purposes. The Company further covenants and agrees to use its commercially reasonable efforts
to keep the Warrant Shares authorized for listing on at least one Eligible Market and to
maintain an effective registration statement with the SEC with respect to the offer or sale of
the Warrant Shares.




3.2. NOTICES OF RECORD DATE AND CERTAIN OTHER EVENTS. In the event of any taking
by the Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or other
distribution, the Company shall mail to the Holder, at least fifteen (15) days prior to the
date on which any such record is to be taken for the purpose of such dividend or distribution,
a notice specifying such date. In the event of any voluntary dissolution, liquidation or
winding up of the Company, the Company shall mail to the Holder, at least fifteen (15) days
prior to the date of the occurrence of any such event, a notice specifying such date. In the
event the Company authorizes or approves, enters into any agreement contemplating, or solicits
stockholder approval for any Fundamental Transaction, as defined in Section 6 herein,
the Company shall mail to the Holder, at least fifteen (15) days prior to the date of the
occurrence of such event, a notice specifying such date. Notwithstanding the foregoing, the
failure to deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.



4. ADJUSTMENT OF EXERCISE PRICE AND SHARES. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 4.




(A) If the Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on the Common Stock or otherwise makes a distribution on any class of capital stock
that is payable in shares of the Common Stock, (ii) subdivides outstanding shares of the
Common Stock into a larger number of shares, or (iii) combines outstanding shares of the
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall
be multiplied by a fraction of which the numerator shall be the number of shares of the Common
Stock outstanding immediately before such event and of which the denominator shall be the
number of shares of the Common Stock outstanding immediately after such event and the number
of Warrant Shares issuable upon exercise of this Warrant shall be proportionately adjusted.
Any adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after
the effective date of such subdivision or combination.


 


 









 






(B) If the Company, at any time while this Warrant is outstanding, distributes to holders
of the Common Stock (i) evidences of its indebtedness, (ii) any security (other than a
distribution of the Common Stock covered by the preceding paragraph), (iii) rights or warrants
to subscribe for or purchase any security, or (iv) any other asset (in each case, “Distributed
Property”), then in each such case the Holder shall be entitled upon exercise of this Warrant
for the purchase of any or all of the Warrant Shares, to receive the amount of Distributed
Property which would have been payable to the Holder had such Holder been the holder of such
Warrant Shares on the record date for the determination of stockholders entitled to such
Distributed Property. The Company will at all times set aside in escrow and keep available for
distribution to such holder upon exercise of this Warrant a portion of the Distributed
Property to satisfy the distribution to which such Holder is entitled pursuant to the
preceding sentence.




(C) Upon the occurrence of each adjustment pursuant to this Section 4, the
Company at its expense will, at the written request of the Holder, promptly compute such
adjustment in accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise of this Warrant
(as applicable), describing the transactions giving rise to such adjustments and showing in
detail the facts upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer
agent.




(D) No adjustment in the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least $0.0001; provided, however, that any adjustments
which by reason of this Section 4(D) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further, however, that
adjustments shall be required and made in accordance with the provisions of this Section
4 (other than this Section 4(D)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution, if any, to the Holder of this Warrant
or the Warrant Shares issuable upon the exercise hereof. All calculations under this
Section 4 shall be made to the $0.0001 or to the nearest 1/1000th of a share, as the
case may be. Anything in this Section 4 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Exercise Price, in addition to those required
by this Section 4, as it in its discretion shall deem to be advisable in order that
any stock dividend, subdivision of shares or distribution of rights to purchase stock or
securities convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.



5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Warrant Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after
aggregation, the exercise would result in the issuance of a fractional share, the number of
Warrant Shares to be issued will be rounded down to the nearest whole share.


 


 









 





6. FUNDAMENTAL TRANSACTIONS. If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with another entity in which
the Company is not the surviving corporation, or sale, transfer or other disposition of all or
substantially all of the Company’s assets to another entity shall be effected (any such transaction
being hereinafter referred to as a “Fundamental Transaction”), then the Holder shall thereafter
have the right to purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of this
Warrant, such shares of stock, securities or assets as would have been issuable or payable with
respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares
immediately theretofore issuable upon exercise of this Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not taken place, and
in any such case appropriate provision shall be made with respect to the rights and interests of
the Holder to the end that the provisions hereof (including, without limitation, provision for
adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be
practicable in relation to any share of stock, securities or assets thereafter deliverable upon the
exercise thereof. The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation thereof the successor
entity (if other than the Company) resulting from such consolidation or merger, or the entity
purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the Holder, at the last address of the Holder appearing on the
books of the Company, such shares of stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and the other obligations under this
Warrant. Notice of any such reorganization, reclassification, consolidation, merger, sale, transfer
or other disposition and of said provisions so proposed to be made, shall be mailed to the Holders
of the Warrants not less than twenty (20) days prior to such event. The provisions of this
Section 6 shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers or other dispositions, each of which transactions shall
also constitute a Fundamental Transaction.



7. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will
not, by amendment of its Certificate of Incorporation, Bylaws or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, and will at all times in good faith carry out all the provisions
of this Warrant. Without limiting the generality of the foregoing, the Company (i) shall not
increase the par value of any shares of the Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and
nonassessable shares of the Common Stock upon the exercise of this Warrant, and (iii) shall, so
long as this Warrant is outstanding, take all action necessary to reserve and keep available out of
its authorized and unissued shares of the Common Stock, solely for the purpose of effecting the
exercise of this Warrant, 100% of the Warrant Shares issuable upon exercise of this Warrant then
outstanding (without regard to any limitations on exercise).


 


 









 





8. NO STOCKHOLDER RIGHTS. Other than as provided in Section 3.2 or otherwise
herein, this Warrant in and of itself shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.



9. TRANSFER OF WARRANT. Subject to applicable laws, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized attorney, upon delivery
of this Warrant and the form of assignment attached hereto as Exhibit B to any transferee
designated by Holder. The transferee shall sign an investment letter in form and substance
reasonably satisfactory to the Company and its counsel. Any purported transfer of all or any
portion of this Warrant in violation of the provisions of this Warrant shall be null and void.



10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as this Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.



11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile to the facsimile number specified in writing by the recipient if sent
during normal business hours of the recipient on a Trading Day, if not, then on the next Trading
Day, (c) the next Trading Day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent to the Company at the address listed on the signature page hereto and to Holder at the
applicable address set forth on the applicable signature page to the Subscription Agreement or at
such other address as the Company or Holder may designate by ten (10) days advance written notice
to the other parties hereto.



12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by, and construed in accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law that would require the application of
the laws of any other jurisdiction.


 


 









 





14. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived (either
generally or in a particular instance and either retroactively or prospectively) with the written
consent of the Company and the holders of Company Warrants representing at least two-thirds of the
number of shares of the Common Stock then subject to outstanding Company Warrants. Notwithstanding
the foregoing, (a) this Warrant may be amended and the observance of any term hereunder may be
waived without the written consent of the Holder only in a manner which applies to all Company
Warrants in the same fashion and (b) the number of Warrant Shares subject to this Warrant and the
Exercise Price of this Warrant may not be amended, and
the right to exercise this Warrant may not be waived, without the written consent of the
Holder. The Company shall give prompt written notice to the Holder of any amendment hereof or
waiver hereunder that was effected without the Holder’s written consent. No waivers of any term,
condition or provision of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or provision.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 


 









 







IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of February 25, 2010.



	 	 	 	 	 
	 	AMICUS THERAPEUTICS, INC.

 	 
	 	By:  	 
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


6 Cedar Brook Drive

Cranbury, NJ 08512




 


 









 







Exhibit A




FORM OF NOTICE OF EXERCISE





			
	TO:	 	AMICUS THERAPEUTICS, INC.







Reference is made to that certain Warrant to Purchase Common Stock, dated March [•], 2010, No.

 _____ 

of a series of similar Warrants to Purchase Common Stock (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective
meanings set forth in the Warrant.




(1) [_] The undersigned hereby elects to purchase                      shares of the common
stock, par value $.01 (the “Common Stock”), of AMICUS THERAPEUTICS, INC. (the “Company”)
pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price
in full, together with all applicable transfer taxes, if any.




[_] The undersigned hereby elects to purchase                      shares of the Common Stock
pursuant to the terms of the net exercise provisions set forth in Section 2.1 of the
Warrant, and shall tender payment of all applicable transfer taxes, if any.




(2) Please issue the certificate for shares of the Common Stock in the name of:



	 	 	 	 	 
	 
	 	 	 	 
	  

	 	 

	 	 
	 

	 	Print or type name	 	 
	 
	 	 	 	 
	 

	 	 

Social Security or other Identifying Number
	 	 
	 
	 	 	 	 
	 

	 	 

Street Address
	 	 
	 
	 	 	 	 
	 

	 	 

City State Zip Code
	 	 






(3) If such number of shares shall not be all the shares purchasable upon the exercise of the
Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants
remaining unexercised shall be registered in the name of and delivered to:



Please insert social security or other identifying number:                                         




 




(Please print name and address)



 





 


 









 







	 	 	 	 	 
	 
	 	 	 	 
	Dated:
	 	 	 	 
	 
	 	 	 	 
	(Date)

	 	
 

(Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Print name)
	 	 






 


 









 





Exhibit B




FORM OF ASSIGNMENT




(To assign the foregoing Warrant, execute this form and supply required information. Do not
use this form to purchase shares.)



FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to



 



	 	 	 	 	 
	 
	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 

(Please Print)
	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 

(Please Print)
	 	 






Dated: __________, 201[_]




Holder’s Signature:                                         




Holder’s Address:                                         




NOTE: The signature to this Form of Assignment must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.


 


 









 





Exhibit B




Amicus Therapeutics, Inc. 




Investor Questionnaire




Pursuant to Section A(1) of Annex I to the Agreement, please provide us with the
following information:




	1.	 	The exact name under which your Shares and Warrants are to be registered. You may
use a nominee if appropriate:
	 
	2.	 	The relationship between the Investor and the registered holder listed in response
to Question 1 above (if not the same person):
	 
	3.	 	The mailing address of the registered holder listed in response to Question 1 above:
	 
	4.	 	The Social Security Number or Tax Identification Number of the registered holder
listed in response to Question 1 above:
	 
	5.	 	Name of DTC Participant (your prime broker at which the account or accounts to be
credited with the Shares are maintained); please include the name and telephone
number of the contact person at your prime broker:




 











 





	6.	 	DTC Participant Number:
	 
	7.	 	Name of Account at DTC Participant being credited with the Shares:
	 
	8.	 	Account Number at DTC Participant being credited with the Shares: